Appendix — Trudel v. Vaughn
Supreme Court brief2001
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\9) FILF
O4 211 MAR 08 2001
OFFICE OF THE CLERK
UNITED STATES SUPREME COURT
NO. 00M84
GEORGE TRUDEL, JR.
Petitioner
V.
DONALD VAUGHN, SUPERINTENDENT
DISTRICT ATTORNEY OF PHILADELPHIA
ATTORNEY GENERAL OF
PENNSYLVANIA
APPENDIX
On Petition For Writ of Certiorari to the United
States Court of Appeals for the Third Circuit,
No. 00-1099.
Counsel for Petitioner:
John N. DelCollo, Esquire
(Counsel of Record)
21 W. Chester Pike
Ridley Park, PA. 19078
610-521- 4615
F. Kirk Adams, Esquire
21 W. Chester Pike
Ridley Park, PA. 19078
610-521-8800
TABLE OF CONTENTS
Order entered in the United States Court
of Appeals for the Third Circuit........0...... cesses 3
Order entered in the United States District
Court for the Eastern District of
Report and Recommendation of United
States Magistrate Judge.............ssssssssssesereseseseeeees 5
Defendant’s Petition For Post Conviction
Relief filed in the Court of Common Pleas
of Philadelphia, Pennsylvania ..............:-sesseeeees 30
Appellant’s Brief in the Superior Court
of Pennsylvania, No. 01478 PHL 97...........:.s00+ 40
Notes of Testimony form Post Conviction Hearing
Jammtary 30, 1997 ......:0cccsccsacccssecsnesssesavancsonevoneens 78
Oe es sdanssnnueenppacanied 218
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
C.A. No. 00-1099
GEORGE TRUDEL, JR.
vs.
DONALD VAUGHN, ET AL.
(E.D.PA.CIV.NO.99-CV-02734)
Present: NYGAARD, ALITO and FUENTES, CIRCUIT
JUDGES
Submitted are:
(1) Appellant’s request for a certificate of
appealability under 28 U.S.C.
$2253(c)(1); and
(2) Appellees’ response in opposition thereto
in the above-captioned case.
Respectfully,
Clerk
MMW/LLB
ORDER
The request for a certificate of appealability is denied.
Petitioner failed to make a substantial showing of the
denial of a constitutional right. 28 U.S.C. S 2253(c)(2).
By the Court,
Circuit Judge
Dated:
xs
IN THE UNITED STATE DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
GEORGE TRUDEL, JR. : CIVIL ACTION
v. :
DONALD VAUGHN, etal : NO. 99-2734
ORDER
AND NOW, this Day of , 2001:
1. Petitioner’s objections toe the Report and
Recommendation of United States Magistrate Judge
Carol Sandra Moore Wells are overruled.
2. The Report and Recommendation is approved
and adopted.
3. The petition for writ of habeas corpus is
denied.
4. Acertificate of appealability is denied, as
petitioner has not made a substantial showing of the
denial of a constitutional right. 28 U.S.C. $2253(c)(2)
BY THE COURT:
/s/
IN THE UNITED STATE DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
GEORGE TRUDEL, JR. ; CIVIL ACTION
DONALD VAUGHN. et al | NO. 99-2734
REPORT AND RECOMMENDATION
CAROL SANDRA MOORE WELLS
December 30, 1999
UNITED STATES MAGISTRATE JUDGE
Presently before this court is a counseled Petition
for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. S
2254. George Trudel, Jr. (“Petitioner”) currently is
incarcerated at the State Correctional Institution at
Graterford, Pennsylvania. Petitioner seeks habeas relief
based on a claim that he did not knowingly and
voluntarily waive his right to testify. The Honorable
Robert F. Kelly referred this matter to me for a Report
and Recommendation pursuant to 28 U.S.C. S
636(b)(1)(B). For the reasons which follow, it is
recommended that Petitioner’s procedurally defaulted
claim be denied and dismissed without an evidentiary
Fs
ilar |
hearing.
I. BACKGROUND AND PROCEDURAL
HISTORY.’
The facts of the case, as stated by the
Pennsylvania Superior Court, follow:
According to witnesses presented by the
Common-
wealth, [petitioner] was at a party in his
apartment
when a man came to the door offering to sell
them
Valium. The man stated that Casimer Barowiec,
the decedent, had the Valium. [Petitioner] and his
friends wanted the Valium, but could not afford
It.
They asked to have the Valium on credit, but the
man refused. [Petitioner] returned to the party
and
said something to the effect of, “Let’s go beat this
guy up and take his V’s [Valium]”
[Petitioner] and a friend, Robert Barrett, left the
The facts and procedural history were gleaned
from Petitioner’s Habeas Corpus Petition and Reply
Brief, the Commonwealth’s Response, inclusive of
all exhibits thereto, and the state court record.
-6-
party. They returned shortly thereafter, and
Barrett bragged that he had beaten up and
stabbed Barowiec. Barrett told people at the
party that Barowiec had a knife, which fell
on the ground during the fight, and, that
[Petitioner] recommended stabbing Barowiec.
[Petitioner] then took a board and suggested that
they “go down and finish him off.” [Petitioner],
Barrett, and others found Barowiec lying nearby.
Barowiec died later from a stab wound in his
chest.”
On December 8, 1988, a jury in the Court of
Common Pleas, Philadelphia County, convicted
Petitioner of second degree murder, criminal conspiracy,
and possessing an instrument of crime.* On April 18,
1989, the Honorable David N. Savitt, who had presided
at trial, denied Petitioner’s post-verdict motions and
sentenced him to a mandatory term of life imprisonment
2
Commonwealth v. Trudel, No. 01203 Philadel-
phia 1989 at 1-2 (Pa.Super.January 10, 1990) footnote
omitted).
3
See Answer at 1.
for second degree murder and a concurrent prison
sentence of one to two years for possessing an
instrument of crime.* Judge Savitt suspended the
sentence for criminal conspiracy.°
Petitioner filed an appeal from the trial court
judgment in the Superior Court of Pennsylvania. The
claims asserted therein were that 1) the evidence was
insufficient to support a second degree murder
conviction; 2) Petitioner’s out-of-court statements were
insufficient to support a conviction without independent
evidence; 3) the trial court erred in admitting out-of-
court statements of co-Defendant; 4) trial court erred in
failing to define justification in the context of its
voluntary manslaughter charge; 5) trial court erred in
refusing to admit a psychological assessment relating to
‘Id.
Id.
the Commonwealth’s chief witness; and 6) the trial court
erred in extending the time for trial under
Pa.R.Crim.P.1100°. The Superior Court of Pennsylvania
affirmed the trail court judgment in a memorandum
opinion filed January 10, 1990.7 On February 28, 1990,
the Superior Court denied Petitioncr’s application
requesting reargument or reconsideration of its decision.
On March 27, 1990, Petitioner appealed to the
Supreme Court of Pennsylvania, arguing that the
Superior Court erred in (1) finding the lower court’s
charge to the jury accurately and adequately reflected the
law of unreasonable belief voluntary manslaughter; (2)
finding that certain documents were not statements by
the witness, did not contradict the witness’ testimony,
6Soe Commonwealth v. Trudel No. 01203 Phila-
delphia 1989, slip op. At 2-6 (Pa.Super.Jan.10, 1990)
"Id. at 7.
and lacked probative value; and (3) finding that the trial
court did not abuse its discretion in ruling that the chief
Commonwealth witness could testify as to out-of-court
statements, purportedly made by a codefendant, which
were not made in the course of or in furtherance of a
conspiracy.* The Supreme Court denied allowance of
appeal on October 23, 1990.°
Petitioner, represented by new counsel, filed a
petition for collateral review under Pennsylvania’s Post
Conviction Relief Act (PCRA), 42 Pa.C.S. $9541, et seq.
On September 1, 1992, wherein he contended that “(1)
tria! counsel was ineffective for depriving the [Petitioner]
of his right to testify on his own behalf; and (2) trial
counsel was ineffective for failing to call Sophie Martin,
87d. at 3.
*See Answer at 2.
-10-
the [Petitioner’s] grandmother, to the stand at trial.”"°
The Honorable Joseph I. Papalini denied the PCRA
petition on May 26, 1995;"however, the Superior Court
vacated this judgment and remanded the matter for an
evidenciary hearing to determine whether Petitioner was
denied his right to testify at trial.'? After a hearing, Judge
Papalini found that trial counsel adequately informed
Petitioner of his right to testify; he, therefore, denied the
PCRA petition a second time on March 10, 1997."°
Petitioner filed an appeal of the denial of his
Commonwealth v. Trudel, No. 2299 Philadelphia
1987, slip op. at 3 (C.C.P. Philadelphia County March
10, 1997).
'\See Answer at 2.
'2Commonwealth v. Trudel, 685 A.2d 1048 (Pa.
Super1996)(table).
'3C@mmonwealth v. Trudel, No. 2299 Philadelphia
1987, slip op. at 11 (C.C.P. Philadelphia County
March 10, 1997).
aes
-PCRA petition in the Superior Court of Pennsylvania on
the ground that trial counsel was ineffective for failing to
ensure that Petitioner knowingly and voluntarily waived
his right to testify.'* The Superior Court affirmed the
order of the PCRA court on June 2, 1998."°
Petitioner’s appeal to the Supreme Court of
Pennsylvania asserted that there was insufficient evidence
in the record to establish that he knowingly and
voluntarily waived his constitutional right to testify in his
own defense.'° He contended that, because the
constitutional right to testify is a fundamental right, the
lower courts should have required that the trial court
record expressly reflect a valid and knowing waiver of
'4Commonwealth v. Trudel, No. 1478 Philadel-
phia 1997, slip op. at 2 (Pa.Super.June 2, 1998)
'STd. at 6.
'6See Answer at 3-4.
«]2-
the right.'’ Petitioner argued that mere assumption,
supposition, or presumption cannot adequately establish
a valid waiver.'® He further stated that the lower courts
erred in applying an ineffective assistance of counsel
analysis to his claim concerning denial of his right to
testify.”!? The Supreme Court denied allocatur on
December 23, 1998.”°
On April 28, 199, Petitioner filed the within
habeas petition asserting the “[he] did not knowingly and
voluntarily waive his right to testify.””’ The
Id.
18
See Petitioner’s Petition for Allowance
of Appeal in the Supreme Court of Pennsylvania,
June 25, 1988.
19Td
20
Commonwealth v. Trudel, No. 314E.D.
Allocatur Docket 1998
21 See Petition at 7.
ee
Commonwealth asserts, and this court agrees, that
Petitioner’s claim is procedurally defaulted.”
II. DISCUSSION
A. Exhaustion
A Petition for habeas corpus is a final effort to
obtain relief when other legal remedies are foreclosed.
Therefore, a district court may consider and grant habeas
corpus relief only if Petitioner meets his burden of
proving that he has exhausted all state remedies available
to him with respect to each discrete allegation or is
excused from doing so. 28 U.S.C. $2254(b),” Rose v.
22See Answer at 10.
>The exhaustion requirements of 28 U.S.C. S 2254
provide: (b)(1) An application for a writ of habeas corpus
on behalf of a person in custody pursuant to the judg-
ment of a State Court shall not be granted unless it
appears that (A) the applicant has exhausted the
remedies available in the courts of the State; or
(b)(i) there is an absence of available State corrective
process; or
(ii) circumstances exist that render such process inef-
-14-
ee eee wet as
Lundy, 455 U.S. 509, 519 (1982); Toulson v. Beyer, 987
F.2d 984, 987 (3d Cir. 1993), aff'd 30 F.3d 1488 (3d Cir.
1994)(citations omitted). A claim is exhausted if it has
been “fairly presented” once to the state’s trial court,
intermediate appellate court, and highest court. 29U.S.C.
S 2254(b); Evans v. Court of Common Pleas, Delaware
County, Pennsylvania, 959 F.2d 1227, 1230-31 (3d Cir.
1992) (citing Picard v. Conner, 404 U.S. 270, 275
(1971)). The fair presentation requirement is met when
the claim presented in the state court is the “substantial
equivalent” of the claim asserted in the petitioner’s
federal habeas petition. Picard, 404 U.S. at 278. See
Lesko v. Owens, 881 F.2d 44, 50 (3d Cir. 1989) (citing
fective to protect the rights of the applicant...
(c) an applicant shall not be deemed to have exhausted
the remedies available in the courts of the State, within
the meaning of this section, if he has the right under the
law of the State to raise, by any availability procedure,
the question presented.
-15-
Picard), cert. denied 110 S.Ct. 759 (1990); Bisaccia v.
Atty. Gen. Of New Jersey; 623 F.2d 307, 310 (3d Cir.
1980) (quoting Picard), cert. denied 101 S.Ct.622
(1980). “It is not enough that all the facts necessary to
support the federal claim were before the state courts...of
that a somewhat similar...claim was made.” Anderson v.
Harless, 459 U.S.4,6(1982). For purposes of
exhaustion, it is not necessary that the state court rule on
the merits of the claim(s) presented to it. See Sullivan v.
Cuyler, 723 F.2d 1077, 1082 (3d Cir. 1983); Gonce v.
Redman, 780 F.2d333.336(3d Cir. 1985). If a direct
appeal has been aborted, but collateral review is possible,
then the exhaustion requirement has not been met. 29
U.S.C. § 2254(c).
In the instant petition, the sole claim presented
for review was not “fairly presented” in all levels of the
state courts. Petitioner did not present his Sixth
-16-
Amendment claim at any level of direct appeal.
Moreover, he did not initially raise this issue during
collateral review, pursuant to the PCRA. Although, at
the PCRA and Superior Court levels. Petitioner raised a
related ineffective assistance of counsel claim, he first
argued that there was insufficient evidence on the record
to establish that he knowingly and voluntarily waived his
right to testify upon appeal of the PCRA denial to the
state’s highest court. Therefore, the issue presented in
this habeas petition is unexhausted.
B. Procedural Default
Generally, a Seshiiue must return to the state
courts to present the unexhausted claim for collateral
review before he can obtain federal habeas review. Rose.
455 U.S. at 52. However, this federal habeas court may
excuse Petitioner’s failure to exhaust his claim if state
court review is now “clearly foreclosed”. See Doctor v.
xs
Walters. 96 F.3d 675. (3d Cir. 1996) and Peterson v.
Brennan, 1998 WL470139."4 (E.D. Pa.) (both citing
Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993). A
petitioner’s return to state court would be “futile” when a
State procedural bar “clearly foreclose[s] state court
review of the unexhausted claims.” If there is any
uncertainty as to how a state court would resolve a
procedural default issue, [a federal court] should dismiss
the petition for failure to exhaust...” Peterson, 1998
WL47-139.*4 (citing Doctor v. Walters, 96 F.3d 675,
681 (3d Cir. 1996)(quoting Toulson, 987F .2d 984,
987)).
The crucial question, then, is whether it remains
procedurally possible for Petitioner to present his
unexhausted federal claim to Pennsylvania state courts.
The Government argues that Petitioner’s claim regarding
his right to testify is procedurally defaulted because
-18-
Petitioner failed to timely present it in state court.”
Based upon requirements of the PCRA, this Court agrees
that collateral attack in state court is now clearly
foreclosed by a time bar or waiver.
a. Statute of Limitations
The PCRA requires that all petitions be filed
“within one year of the date the judgment becomes
final....”42 Pa.C.S.A.§ 9545(b)(1). A judgment is
deemed final, for purposes of t the PCRA, “at the
conclusion of direct review, including discretionary
review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of
time for seeking the review.” Peterson 1998 WL470139
at *5 (citing 42 Pa.C.S.A.§9545(b)(3)). The
Pennsylvania Supreme Court denied Petitioner's request
for allowance of appeal on October 23, 1990. Therefore,
4See Answer, p.9-10.
-19-
pursuant to the 1995 amendment to 42 Pa.C.S.A. §9542,
Petitioner had until December 22, 1990”, to file a timely
PCRA petition in state court. The Pennsylvania Supreme
Court has strictly and without deviation enforced this
newly adopted limitation period. See e.g. Comm. V.
Fany, 737 A.2d. 214 (Pa. 1999). Thus, dismissal to
return to state court to exhaust the claim would be futile.
b. PCRA’s Waiver Requirement
Moreover, to obtain collateral review, Petitioner
must demonstrate to the state PCRA court that 1) the
claim has not been previously litigated or waived and 2)
previous failure to raise the issue was not the result of
any rational, strategic, or tactical decision by counsel.
42Pa.C.S.§9543(a)(3),(4). An issue is previously
litigated if “the highest appellate court in which the
*>Petitioner had sixty (60) days to seek direct review
of his conviction to the United States Supreme Court after
allocatur was denied. 42Pa.C.S.A.§9545(b)(3).
-20-
petitioner could have obtained review as a matter of right
has ruled on the merits of the issue” or “it has been raised
and decided in a proceeding collaterally attacking
conviction or sentence.” 42Pa.C.S.§9544(a)(2) and (3)
Further, “an issue may not be relitigated merely because
a new or different theory is posited as a basis for
reexamining an issue that has already been decided.”
Commonwealth v. Tenner, 377 Pa.Super.540, 547 A.2d
1194, 1197 (1988), appeal denied, 562 A.2d 826 (Pa.
1989). An issue is deemed waived if “petitioner could
have raised it but failed to do so before trail, at trial,
during unitary review, on appeal or in a prior state post-
conviction proceeding.” 42Pa.C.S.§ 9544(b)
Petitioner failed to present his federal claim of
violation of his right to testify on direct appeal.”’He also
6Nor does Petitioner qualify for any exception to
permit him to successfully institute an untimely second
PCRA action. The PCRA bars any petition no filed
at.
nN
failed to raise it at the first two levels of collateral
review. Since this issue was known during and after trial
it previously could have been raised and is, by the
foregoing aitiitines waived. Moreover, identical facts
were germane to resolution of the ineffective assistance
of counsel claim that was previously present to
Pennsylvania’s highest appellate court. Pennsylvania
State Courts will not revisit a claim previously rejected
merely because a new theory of relief has been advanced.
~ 42Pa.C.S. §§9543(a)(3), 9544(a); Commonwealth v.
Christy, 656 A.2d877, 881 (Pa. 1995), cert. denied, 516
U.S. 872 (1995). Couched as ineffective assistance or as
a direct denial of his right to testify claim, the state
courts, after a full hearing, ruled on the merits of
within one year of the date on which the challenged
judgment becomes final. 42Pa.C.S.§9545(b)(1).
2.
Petitioner’s claim.”’ Hence, Petitioner’s habeas issue is
both waived and previously litigated and state court
collateral review is clearly foreclosed, rendering
Petitioner’s federal claim procedurally defaulted.
c. Relief from Procedural Default Petitioner’s
Habeas.
This court must dismiss a procedurally defaulted
claim unless Petitioner demonstrates both “cause” for the
default and “actual prejudice as a result of the alleged
violation of federal law,” or that failure to consider the
claim will result in a “fundamental miscarriage of justice”
which has been defined to encompass instances in which
We find that counsel did not interfere with Peti-
tioner’s right to testify and he certainly did not prohibit
him from taking the witness stand in his own defense.
We find instead that after the presentation of defense
testimony, [trial counsel] advised Petitioner not to testify
and that Petitioner relied on that advice.”Commonwealth
v. Trudel No. 2299 Philadelphia 1987, slip op. at
8(C.C.P. Philadelphia County, March 10, 1997).
=.
newly discovered evidence makes it “more likely than
not” that a reasonable juror would find a Petitioner not
guilty. Coleman, 501 U.S.at 750, Schlup v. Delo, 513
U.S. 298(1995); see also. Caswell v. Ryan, 953 F.2d853,
8567 (3d Cir. 1992), cert. denied, 504 U.S. 944 (1992)
“Cause” sufficient to excuse procedural default
requires a showing that some objective factor, outside of
counsel or Petitioner’s control, prevented compliance
with state procedural rules. Murray v. Carrier, 477 U.S.
478, 488 (1986); Caswell, 953 F.2d at 862. “Actual
prejudice” occurred if an error caused the “actual and
substantial disadvantage” of petitioner. U.S. v. Frady,
456 U.S.152, 179 (1972). The burden of proof falls on
Petitioner to establish both cause for the default and
prejudice resulting therefrom. See Teague v. Lane, 489
U.S. 288, 298 (1989); Coleman, 501 U.S. at 754;
Caswell, 953 F.2d at 862.
-24-
EB cd Set Aut 5 aN ee gt aa te
Petitioner offers no explanation for his failure to
pursue the right to testify claim through all levels of the
state court system. He does argue, however, that the
PCRA court and Superior Court erred in evaluating his
claims under the ineffective assistance of counsel
analysis. His failure to correct this “misconstruction’”*is
not attributable to any factor outside his or his counsel’s
control, thus the record is devoid of “cause” for his
failure to timely argue the claim sub judice. He knew
both during trial and upon direct appeal that he ena
to testify but had not done so. When the factual basis of
a delayed claim is not based upon newly acquired
evidence, no factor outside of Petitioner himself
**Despite Petitioner’s argument to the contrary,
the lower courts did not err in analyzing his claims under
the guise of ineffective assistance of counsel. In fact, a
claim that defendant’s right to testify was violated by
counsel must be evaluated as ineffective assistance of
counsel theory under Strickland, See United States v.
Teague, 953 F.2d 1525.
9%.
occasioned the failure to timely pursue same.
Moreover, Petitioner offers no newly discovered
evidence which would effect a “fundamental miscarriage
of justice” if his Sixth Amendment issue were not
considered by this Court. As nothing in the record
justifies excusing the procedural default, this Court must
bar habeas review of this claim.”
°E ven if Petitioner’s claim were not procedurally
defaulted, he would not be entitled to habeas relief. When
Petitioner appealed denial of his PCRA petition, the
Superior Court of Pennsylvania remanded the matter
to the PCRA court for an evidentiary hearing to deter-
mine whether, in fact, trail counsel had informed Peti-
tioner of his right to testify. Testimony at the hearing,
at which Petitioner and his former counsel testified,
revealed that trial counsel and Petitioner met on several
occasions and had two telephonic conversations to
discuss case strategy. In addition, the trial court, on the
record and with Petitioner present, informed the jury
with Petitioner present before trial commenced that the
decision to testify was Petitioner’s alone. Furthermore,
trial counsel testified that his current practice is to inform
clients that the decision to testify rests with them and he
believes that, at the time that he counseled Petitioner, he
was aware of that fact. After the hearing, the PCRA Court
found as a matter of fact that the trial counsel had properly
-26-
Accordingly, I make the following:
informed Petitioner of his right to testify and, in
following counsel’s advice, Petitioner, of his own free
will, opted to remain silent. Therefore, the court
concluded that trial counsel was not ineffective. This
factual determination by the state court is presumptively
correct and Petitioner has failed to rebut the presumption
with “clear and convincing evidence” 28 U.S.C.
2254(e)(1). Consequently, this court would accept that
finding as true since it is reasonably based, is not
contrary to Supreme Court precedent and is not an un-
reasonable application of any such law. Matteo v.
Superintendent, SCI Albion, 171 F.3d 877, 891
(3d Cir. 199).
: -27-
OMMEN ION
AND NOW, this 30" day of December, 1999, for
the reasons contained in the foregoing report, it is hereby
RECOMMENDED that the Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. §2254 be DENIED and
DISMISSED without an evidentiary hearing. Petitioner
snd failed to make a showing of a denial of a
constitutional right. Thus, there is no probably cause to
issue a certificate of appealability.
BY THE COURT:
/s/ Carol Sandra Moore Wells _
CAROL SANDRA MOORE WELLS
UNITED STATE MAGISTRATE JUDGE
-28-
IN THE COURT OF COMMON PLEAS OF
: PHILADELPHIA COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
VS.
GEORGE TRUDEL, JR.
NOS. 2299-2302
Aug. - 1987
DEFENDANT’S PETITION FOR
POST CONVICTION RELIEF
PURSUANT TO RULE 1501
AND 42 Pa.C.S.A. SECTION 9541 ET. SEO.
DOTY RCS KR prpclel Meaty PANE
F. KIRK ADAMS, ESQUIRE
Counsel for Defendant
Eight West Front Street
Meaia, PA 19063
(215) 565-4490
Attorney I.D. #03733
Se rn a ee OE PP cde Seen ee
hha!
Eee Re PT ee ET
COMMONWEALTH ~= : COURT OF COMMON
OF : PLEAS
PENNSYLVANIA — : PHILADELPHIA COUNTY
vs. CRIMINAL DIVISION
GEORGE TRUDEL, JR.: NOS. 2299-2302
DEFENDANT’S PETITION FOR
POST CONVICTION RELIEF
PURSUANT TO RULE 1501
AND 42 Pa.C.S.A. SECTION 9541 ET. SEQ.
TO THE HONORABLE, THE JUDGES OF SAID
COURT:
The defendant, George Trudel, Jr., by his
attorney, F. Kirk Adams, Esquire, moves the court for
post-conviction collateral relief pursuant to Rule 1501 of
the Rules of Criminal Procedure:
1. The defendant’s name is George Trudel, Jr.
2. The defendant is confined in the State
Correctional Institution at Graterford.
3. The defendant was convicted and sentenced
for murder in the second degree, criminal conspiracy and
possession of an instrument of crime.
-30-
4. The defendant was initially sentenced on
December 8, 1988 immediately after a jury found him
guilty of second degree murder, criminal conspiracy and
possession of an instrument of crime. Judgment of
sentence was formally entered on or about April 18,
1989 after the court denied the defendant’s post-trial
motions.
5. The defendant was convicted by a jury.
6. The court imposed the following sentences:
On bill of information No. 2301, August Term, 1987,
second degree murder, life imprisonment; on bill of
information No. 2300, August Term 1987, criminal
conspiracy, sentence suspended; on bill of information
No. 2299, August Term, 1987, possession of an
instrument of crime, two years of imprisonment to run
concurrently with the sentence of life imprisonment on
Bill No. 2301. The defendant is serving these sentences
31.
7. The judge who presided over the jury trial and
who sentenced the defendant is the Honorable David N.
Savitt.
8. The defendant filed an appeal in the Superior
Court of Pennsylvania, No. 1203 PHL-89. The Superior
Court affirmed the judgment of the Court of Common
Pleas of Philadelphia County on January 10, 1990. The
defendant’s request for reargument was denied on
February 28, 1990. The defendant’s petition for
allowance of appeal to the Supreme Court of
Pennsylvania was denied on October 23, 1990. The
defendant has never filed a federal action seeking post-
conviction relief. All of the defendant’s direct appeals
have been completed.
9. The defendant was represented by George
Henry Newman, Esquire: Suite 400, The Benjamin
4.
Franklin, 834 Chestnut Street, Philadelphia, Pa., 19107
from his arraignment until the denial of his petition for
allowance of appeal by the Supreme Court of
Pennsylvania on October 23, 1990.
10. The defendant requests discharge by arrest of
judgment or, in the alternative, a new trial.
11. The grounds for the relief requested are as
follows:
(a) The defendant was deprived of his
Constitutional right to testify in his own defense by
counsel’s decision not to call him as a witness at trial.
(b) The defendant was denied effective
assistance of counsel as follows:
(1) Counsel failed to call Sophie
Martin as a trial witness despite her availability,
willingness to testify and exculpatory testimony.
(2) At counsel’s request no
a.
transcripts were made of hearings held on the Rule 1100
issue depriving the defendant of appellate review of this
court’s rulings on Rule 1100 and/or counsel failed to
preserve defendant’s rights under Rule 1100 by failing to
file a timely Motion to dismiss.
(c) The Commonwealth’s prosecution of
the defendant was vindictive in violation of the
defendant’s right to due process of law guaranteed by the
United States Constitution and the Constitution of the
Commonwealth of Pennsylvania. The defendant was
prosecuted to punish him for testifying on behalf of
Robert Barrett at Barrett’s trial.
(d) The commencement of trial on
November 28, 1988 violated Rule 1100 and deprived the
defendant of his right to a speedy trial guaranteed by the
United States Constitution and the Constitution of the
Commonwealth of Pennsylvania.
-34-
Et a ELEY, ayn ey
12. The factors supporting each such ground
which;
(a) appear in the record, can be found in
the trail transcript insofar as it shows that neither the
defendant nor Sophie Martin testified at defendant’s trial.
Furthermore, the docket entries support the defendant’s
Rule 1100 claim and the Memorandum opinion of the
Superior Court of Pennsylvania in Commonwealth v.
Trudel, No. 01203 PHL 89, filed January 10, 1990, page
7. supports the defendant’s claim that counsel’s failure to
request a record deprived the defendant of appellate
review of the Rule 1100 issue.
(b) do not appear in the record, can be
found in the Affidavits of Sophie Martin and George
Trudel, Jr. which are attached and the Notes of
Testimony from the trial of Robert Barrett,
Commonwealth v. Robert Barrett, Nos. 2305 - 2307,
-35-
December Term, 1987, as follows: Testimony of George
Trudel, Jr. on July 21, 1987, pages 154 to 200 inclusive
and Testimony of Sophie Martin on July 20, 1987, pages
132 to 151 inclusive. Testimony of George Trudel, Jr. at
Robert Barrett’s preliminary hearing on December 10,
1986, pages 3 to 16.
13. None of the grounds for the relief requested
were raised before, except the alleged violation of Rule
1100 which was raised in this Honorable Court by
defendant’s objection to the Commonwealth’s motions
for extension of Rule 1100 and the defendant’s post-
verdict motions. The defendant’s Rule 1100 issue was
raised in the defendant’s direct appeal to the Superior
Court of Pennsylvania.
14. The defendant’s conviction resulted from a
violation of the Constitution of Pennsylvania and the
Constitution of the United States which so undermined
-36-
a
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ES
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G
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Po
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2s
Ss eS Tan aire PT UNGR hae SE Ee ted ae Teese Ge: tt eat oe tea eRe Oe oe
the truth determining process that no reliable
adjudication of guilt or innocence could have taken place.
15. Furthermore the defendant’s conviction
resulted from ineffective assistance of counsel which so
undermined the truth determining process that no reliable
adjudication of guilt or innocense could have taken place.
16. The defendant’s conviction violated the 5"
Amendment of the United States Constitution since the
prosecution was carried out to punish the defendant for
testimony as a defense witness at the trial of Robert
Barrett.
17. The allegations raised in this petition have
not been previously litigated and all of the following
apply:
(a) The issues raised in this petition have
not been waived.
(b) If the issues raised have been waived
mB
the alleged error has resulted in the conviction of an
innocent individual.
(c) If the issues have been waived the
waiver of those issues during pre-trial, trial, post-trial or
direct appeal proceedings does not constitute a state
procedural default barring federal habeas corpus relief.
18. The Commonwealth has not been prejudiced
either in it’s ability to respond to this petition or in it’s
ability to re-try the petitioner.
WHEREFORE, the defendant, George Trudel,
Jr., prays that your Honorable Court will enter an order
scheduling a hearing to receive testimony and other
evidence relevant to defendant’s motion and that
thereafter your Honorable Court will enter an order
o38-
Pry eee Pe hee ah
kt ee
HEALS N ERA Sg LAMAR TN I Hadid heeoMaan
setting aside the defendant’s conviction of second degree
murder, criminal conspiracy and possession of instrument
of crime and granting defendant’s discharge and/or a new
trial.
Date: September 1, 1992 /s/ F. Kirk Adams, Esquire
F. Kirk Adams,Esquire
Counsel for Defendant
Eight West Front Street
Media, PA 19063
(215) 565-4490
Attorney I.D. #03733
-39-
IN THE SUPERIOR COURT
OF PENNSYLVANIA
COMMONWEALTH
OF PENNSYLVANIA : NO. 01478 PHL 97
VS.
GEORGE TRUDEL, JR..,
Appellant
BRIEF OF THE APPELLANT
In the appeal from the Order of March 10, 1997
denying Appellant’s petition for Post Conviction Relief
entered by the Court of Common Pleas of Philadelphia
County, Criminal Division, in Commonwealth v. George
Trudel, Jr., No. 8708-2299.
F. KIRK ADAMS, ESQUIRE
Counsel for Appellant
21 Chester Pike
Ridley Park, PA 19078
(610) 521-8800
Attorney I.D. #03733
-40-
TABLE OF CONTENTS
Page
TT TTD 3
Statement of Jurisdiction..................ccceeeeeeeeee 5
Statement of Scope and Standard of Review... 5
Cpen th QORIOR.niiecscssnaiassscsnsissrssranscsccaenessee 6
Statement of Questions Involved..................++ Fi
Statement Of the Case..............ccccsessscrrseosssseees 8
Summary of Argument.............:ccccssceseeeseeeees 14
Argument Sor AOU. .isiscssnccssccsssssssssosesseas 16
i. The defendant did not make a knowing
voluntary waiver of his Constitutional
right to testify........... 16
li. Counsel was ineffective for failing to
ensure that the defendant’s waiver of his
right to testify was knowing and
lil. The waiver of defendant’s right to testify
by counsel and the ineffective assistance
of counsel in that regard undermined the
truth determining process and prejudiced
ie I ai issiscnicarecsntisvidinctnntansin 23
wht.
Cm os. icc iccctbastatedasiecinedamedeiadonteinensanns 26
Opinion of the Court Below..............:::cceseeeeees 27
TABLE OF AUTHORITIES
Page
Statute & Other Authorities:
BE FP, Ge, PD Poi ieccicnnstccscnstdsocsonsenntce 5
Rule 1-2(a) ABA’S Model Rules of
Professional Conduct...............scsccccseccsseeees 18
Vol. 1, Standards for Criminal Justice,
Standard 4-5.2(a)2ed. (1980)...ccccsscssscsoseee 18
Citations:
Boykin v. Alabama, 395 U.S. 238,
89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)......... 17
Commonwealth v. Bazabe, 590 A.2d 1298,
1301 (Pa. Super. 1991).............csesccesees 16, 17, 20
Commonwealth v. Ellis, 662, A.2d 1043
UNG SPU cnsincshenasssscinediatepibenuidtapiiidediaaieouss 23
Commonwealth v. Fowler, 523 A.2d 784,
PE FU, BE: G1 CEG T Poses ces escsissccnrssccssceee 17
Commonwealth v. Mancini, 340 Pa. Super. 592, 607,
ew BR me Tk, | ne 16
-42-
ice ARNE iat Sle ON hak ES A ENO ace Sis Ne
ee ees
To Ne ee ee ey ee
Commonwealth v. McCord, 644 A.2d 1206
(Pa. Super. 1994).......cccscsescssessseessseesseeesees 5
Commonwealth v. Rawles, 501 Pa. 514, 523 N.3,
462 A.2d 619, 624 N.3 (1983)..............0000 16
Commonwealth v. Rainey, 420 Pa. 220
= te ORE |_| Serie n nnn 23
Commonwealth v. Wallace, 347 Pa. Super. 248,
254, 500 A.2d 816, 819 (1985)..........0000... 16, 17
DeLuca v. Lord, 858 F.supp. 1330 (1994)... 16, 20
Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019,
Be RD DIMER © FO irccsssnisccisctensetinntniions 17, 20
McMann v. Richardson, 397 U.S. 759, 770-71,
90 S.Ct. 1441, 1448049, 25 L.Ed.2d 763 (1970)......22
Mulligan v. Kemp, 771 F.2d 1436, 1441 (1985)... 17
Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704,
FF AT ENE Piccdscassnutssinncndisnesdnincsensntaenio’ 16
Strickland v. Washington, 466 U.S. 668,
-43-
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).......... eee 22,
23
United States v. DiSalvo, 726 F.Supp.596,
8 ge , __, Se em Fenn re EEE 16,
20
United States v. Teague, 953 F.2d 1525,
er ee I pettacictctnienienatnines 16,
17,
21
BN Mae aL aly sa Teag eA Ge Ne LER ODER Pe. Hee, PORTANT
STATEMENT OF JURISDICTION
This Honorable Court has jurisdiction to review
the decision of the trial court pursuant to 42 Pa. C.S.A.
Section 742.
STATEMENT OF THE SCOPE AND STANDARD
OF REVIEW
_In reviewing a post conviction court’s grant or
denial of relief, the Superior Court’s scope of review is
limited to determining whether the lower court’s findings
are supported by the record and whether it’s order is
otherwise free of legal error. Commonwealth v.
McCord, 644 A.2d 1206 (Pa. Super. 1994).
-45-
ORDER IN QUESTION
ORDER
AND NOW, this 10 day of March, 1997, after a
review of the pleadings, record, evidence and argument
of counsel, it is hereby ORDERED AND DECREED
that post conviction relief is DENIED.
BY THE COURT:
/s/ Papalini, J.
PAPALINI, J.
-46-
STATEMENT OF QUESTIONS INVOLVED
1. Did the defendant make a knowing and
d voluntary waiver of his Constitution right to testify at his
: trial?
i (Answered in the affirmative by the Court below).
:
2. Was counsel ineffective for failing to ensure
that the defendant’s waiver of his right to testify was
knowing and voluntary?
; (Answered in the negative by the Court below).
3. Did the waiver of the defendant’s right to
testify by counsel and the ineffective assistance of
counsel in that regard, undermine the truth determining
process of the trial and prejudice the defendant?
At TO ae ie Bagi ans oh as
(Answered in the negative by the Court below).
STATEMENT OF THE CASE
Procedural History:
On December 8, 1988 the defendant was found
guilty by a Jury of Murder in the Second Degree,
Criminal conspiracy and Possession of an Instrument of
Crime, in connection with the death of Casimir Baroweic
-47-
on November 14, 1986.
The defendant was sentenced to life imprisonment
for his conviction of Second Degree Murder and two (2)
years imprisonment for his conviction of possession of an
instrument of crime.
The Honorable, David H. Savitt, presided over
the defendant’s trial and sentenced the defendant on
April 18, 1989.
The defendant filed an appeal in the Superior
Court of Pennsylvania, No. 1203 PHL 89. The Superior
Court affirmed the judgment of the Court of Common
Pleas on January 10, 1990. The defendant’s request for
reargument was denied on February 28, 1990 and the
defendant’s petition for allowance of appeal was denied
by the Supreme Court on October 23, 1990.
The defendant was represented by George H.
Newman, Esquire, at trial and during his direct appeals.
-48-
o)
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a
2
A
ry
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«
On September 1, 1992, the defendant filed a
petition for post conviction relief on the grounds that he
was deprived of his Constitutional right to testify and
was denied effective assistance of counsel because
counsel failed to call the defendant’s grandmother to
testify at trial.
On June 24, 1993, the Court below held a special
evidentiary hearing to receive the testimony of the
defendant’s elderly grandmother.
On May 26, 1995, the court entered an order
denying the defendant’s petition for post conviction
relief.
The defendant appealed to the Superior Court in
No. 2330 PHL 95. is
On August 16, 1996, this Honorable Court
vacated the judgment of the court below and remanded
for an evidentiary hearing on the issue of defendant’s
-49-
claim that he was deprived of his night to testify.
On March 10, 1997 the Court below entered an
order denying the defendant’s petition for post
conviction relief.
This appeal was filed on April 2, 1997.
Relevant Facts:
On nial 14, 1986, at approximately 11:00
PM, Philadelphia Police Officers found the body of
Casimir Baroweic lying in the street at the intersection of
Unity and Griscom Streets (N.T., 12-16-88, pp. 34 to
36). It was determined that Baroweic died as a result of
a stab wound of the chest. (N.T., 12-6-88, p. 89).
The Commonwealth’s evidence at trial revealed
that the defendant, his friends, Robert Barrett, Colleen
DeMarco and Jackie Young were at a party in the second
floor apartment at 4436 Griscom Street during the
evening hours on November 14, 1986.
-50-
At approximately 10:00 PM, Art Jones came to
the first floor door of 4436 Griscom. Jones was known
to Barrett and the defendant. Jones offered to sell
Barrett and the defendant Valium pills. Barrett wanted
to buy some pills on credit but Jones wanted cash. Jones
told Barrett and the defendant that Casimer Baroweic
was waiting about a block away with more Valium pills.
(N.T., 12-6-88, pp. 52 to 69).
According to Colleen DeMarco, the defendant
and Barrett talked about beating up a guy who was
outside and taking some Valium pills from him.
Barrett and the defendant left the apartment.
When they returned a short time later, they told
DeMarco and Young that Barrett stabbed a man with a
knife which the man dropped during a fist fight with
Barrett. The defendant suggested going outside to
“finish him off’ and the defendant, Barrett, DeMarco and
At.
Young went out of the house and saw Baroweic lying in
yee, 7. ee
the street. DeMarco went to a nearby store to call the
4 sitet >
police and the others returned to 4436 Griscom Street
(N.T., 12-6-88, pp. 105 to 131, 192, 193); (N.T., 12-7-
88, pp. 243 to 250).
re reer.) ee ee eee
Robert Barrett testified for the defendant and
explained that he was serving a sentence of seven (7) to
fifteen (15) years imprisonment for his conviction of
Third Degree Murder as a result of the stabbing of
Baroweic. Barrett confirmed that Art Jones came to
4436 Griscom Street on November 14, 1986 and tried to
Co a ee. ee ee ee ee eee eee ee ee
sell him Valium pills. After talking with Jones and not
buying the pills, Barrett walked to a nearby store to buy
cigarettes. When he was returning to 4436 Griscom
Street, he was confronted by Baroweic, who was looking
for Jones. Baroweic tried to punch Barrett when Barrett
didn’t answer his questions about the whereabouts of Art ;
-52-
Jones. Barrett defended himself and a fist fight started
between the two men. At some point a large knife fell
out of Baroweic’s clothing. Both men attempted to pick
up the knife and a struggle took place over control of the
knife. During this struggle, Barrett forced Baroweic to
stab himself with his own knife. Baroweic dropped the
knife and ran up Griscom Street towards Unity Street.
— the fist fight with Baroweic, Barrett heard the
defendant’s voice yelling to him, “Don’t be crazy Bob”.
After Baroweic went up Griscom Street, Barrett and the
defendant returned to the apartment. A short time later,
Barrett and the defendant went outside and saw
Baroweic lying in the street at Griscom and Unity.
Barrett was frightened and went home after throwing the
knife onto nearby railroad tracks. (N.T., 12-7-88, pp.
374 to 420, 424 to 427).
<3.
The trial record reveals that the defendant did not
testify at his trial. The trial record does not reveal how
that decision was made or who made that decision.
The defendant and his former attorney, George
Newman, Esquire, testified at an evidentiary hearing on
January 30, 1997.
The defendant said he wanted to testify, told his
lawyer he wanted to testify and expected to testify until
the end of his trial when his lawyer told him, “I’m not
going to put you on the stand”. (73a., 74a., 75a., 76a.,
88a., 96a., 97a., 98a., 101a.). Newman told the
defendant he did not think the defendant’s testimony was
necessary, he did not think the jury would believe
Colleen DeMarco and he would cover everything in his
closing. (74a.). This brief conversation took place at
counsel table while the trial was in progress. (75a.). The
defendant said nothing in response because he trusted his
-54-
si ies ace
lawyer’s judgment, believed his lawyer had the authority
to make that decision and did not know he could
overrule his lawyer. (7Sa., 76a., 88a., 101a., 102a.).
Although the defendant had some prior
experience with the Criminal Justice System, he was
never told by Mr. Newman or any other lawyer that the
decision whether or not he would testify was a decision
he had to make himself (75a., 76a., 79a., 88a.).
George Newman, Esquire, testified that he had no
recollection of the specifics of aiy of his conversation
with the defendant regarding the defendant testifying.
(20a.). He did recall that he was opposed to the
defendant testifying as a matter of strategy. (20a.).
Newman was aware that the defendant had testified at
Barrett’s trial and Barrett’s preliminary hearing and had
preme the police two (2) written statements concerning
the events of November 14, 1986. (19a., 26a.).
-55-
Although Newman had represented the defendant in
several criminal cases before this case, he had no
recollection of ever telling the defendant that the decision
whether or not the defendant would testify was up to the
defendant himself. (29a., 30a.). Furthe re, he could
not say what his general practice was in 1988. (36a.,
43a.). In addition, Newman could not say whether the
defendant acquiesced in counsel’s decision not to put him
on the stand, or whether the defendant made his own
affirmative decision not to testify on the basis of
Newman's recommendation. (40a., 38a., 45a.).
SUMMARY OF APPELLANT’S ARGUMENT
1. The defendant’s right to testify in a criminal
trial is a fundamental Constitutional right which can only
be waived by the defendant. Furthermore, a waiver of
such a right must be knowing and voluntary and must
involve an intentional relinquishment or abandonment of
-56-
a known right or privilege.
In this case the testimony of the defendant and his
former lawyer established that the defendant did not
make a knowing and voluntary waiver of his right to
testify.
The defendant wanted to testify and expected to
testify until the end of his trial when his lawyer told him,
“I’m not going to put you on the stand”. The defendant
said nothing in response and acquiesced in counsel’s
decision because he trusted his lawyer's judgment,
believed his lawyer had the authority to make that
decision and didn’t know he could overrule his lawyer.
Therefore the defendant’s waiver of his right to
testify was not knowing and voluntary and as a result the
defendant was deprived of a fundamental! Constitutional
right.
rs
SS
2. Furthermore, counsel was ineffective for
failing to ensure that the defendant’s waiver of his
Constitutional right to testify was personal, knowing and
voluntary. Counsel has a professional obligation to make
sure_a defendant who is considering a waiver of his right
to testify understands that the decision whether or not to
testify is a decision that must be made by the defendant
himself.
In this case, counsel had no recollection of what
he said to the defendant regarding his right to testify or
the decision whether or not he would testify.
Furthermore, counsel was unable to say what his general
practice was in 1988.
3. The defendant contends the waiver of his right
to testify by counsel and the ineffective assistance he
received from counsel in regard to that waiver
undermined the trust determining process and prejudiced
-58-
him. The defendant wanted to testify and nein to
testify. Therefore it is fair to conclude that he would
have testified but for counsel’s waiver of his right to
testify.
Furthermore, the defendant’s testimony would
have been exculpatory and consistent with Robert
Barrett’s testimony. If the jury had heard the defendant's
testimony and believed the defendant, their verdict would
have been different.
-59-
ne
APPELLANT’S ARGUMENT
1. THE DEFENDANT WAS DEPRIVED OF
HIS CONSTITUTIONAL RIGHT TO TESTIFY
WHEN HE MADE AN UNKNOWING OR
INVOLUNTARY WAIVER OF HIS RIGHT TO
TESTIFY.
A defendant in a criminal case has a
Constitutional night to testify in how own defense under
the Fifth, Sixth and Fourteenth Amendments. Rock v.
Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37
(1987).
As a fundamental Constitutional right, the right to
testify is personal to the defendant and cannot be waived
by counsel regardless of strategic or tactical
considerations. Commonwealth v. Rawles, 501 Pa. 514,
523 N.3, 462 A.2d 619, 624 N.3 (1983); Commonwealth
v. Wallace, 347 Pa. Super. 248, 254, 500 A.2d 816, 819
-60-
(1985); Commonwealth v. Mancini, 340 Pa. Super. 592,
607, 490 A.2d 1377, 1385 (1985); Commonwealth v.
Bazabe, 590 A.2d 1298, 1301 (Pa. Super. 1991); United
States v. Teague, 953 F.2d 1525, cert. Den. 113 S.Ct.
127, 121 L.Ed.2d 82 (1992); United States v. DiSalvo,
726 F. Supp. 596 (E.D. of Pa. 1989); DeLuca v. Lord,
858 F. Supp. 1330 (1994).
A defendant in a criminal case cannot effectively
waive a fundamental Constitutional right unless there is
an intentional relinquishment or abandonment of a known
right or privilege. Johnson v. Zerbst; 304 U.S. 458, 58
S.Ct. 1019, 82 L.Ed.2d 1461 (1938); Boykin v.
Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274
(1969).
Therefore the defendant’s waiver of his right to
testify must be knowing and voluntary in order to be
effective. Commonwealth v. Wallace, supra.
Ye
In order for a waiver to be knowing and
voluntary it must be a decision made by-the defendant
after full consultation with counsel. Commonwealth V.
Wallace, supra.; Commonwealth v. Fowler, supra.; and
Commonwealth v. Bazabe, supra. The advice of counsel
is crucial because there can be no effective waiver of a
fundamental Constitutional right unless there is an
“intentional relinquishment or abandonment of a known
right or privilege. Johnson v. Zerbst, supra.; United
States v. Teague, supra. Defense counsel bears the
primary responsibility for advising the defendant of his
right to testify or not to testify, the strategic implications
of each choice, and that it is ultimately for the defendant
himself to decide. United States v. Teague, supra.,
p.1533. While defense counsel serves as an advocate for 7
his client, it is the client who is the master of his or her
own defense. United States v. Teague, supra., p.1553;
-62-
Mulligan v. Kemp, 771 F.2d 1436, 1441 (1985).
This responsibility is consistent with the
American Bar Association’s Standards for Criminal
Justice which provide:
“(a) Certain decision relating to the
conduct of the case are ultimately for
the accused and others are ultimately
for defense counsel. The decisions which
are to be made by the accused after full
consultation with counsel are:
(i) | what plea to enter;
(ii) | whether to waive jury trial; and
(iii) | whether to testify in his or her
own behalf.”
Vol.1, Standards for Criminal Justice
Standard 4-5.2(a) 2ed. 1980).
Furthermore, the American Bar Association’s
Model Rules of Professional Conduct provide:
“(a) A lawyer shall abide by a client’s
decision concerning the objectives of
representation...and shall consult with
the client as to the means by which they
are to be pursued....In a criminal case,
the lawyer shall abide by the client’s
decision, after consultation with the
At
lawyer, as to a plea to be entered, whether
to waive a jury trial and whether the
client will testify.”
Rule 1-2(a) ABA’s Model Rules of Professional
Conduct.
In this case the defendant wanted to testify, told
his lawyer he wanted to testify, was prepared by counsel
to testify and expected to testify until the end of the trial
when his lawyer told him, “I’m not going to put you on
the stand”. (731., 74a., 75a., 76a., 88a., 96a., 97a., 98a.,
101a.).
The defendant did not respond but instead
acquiesced in counsel’s decision not to put him on the
stand because he trusted his lawyer, believed his lawyer
had the authority to make that decision and didn’t know
he could overrule his lawyer. (75a., 76a., 88a., 101a.,
102a.). Although the defendant had some prior
experience in the criminal justice system he was never
told by any lawyer, including Mr. Newman, that the
-64-
decision whether or not he would testify was up to him.
(75a., 76a., 79a., 80a.).
The defendant’s testimony at the Evidentiary
Hearing on January 30, 1997 was uncontradicted. The
defendant’s former lawyer, George Newman, Esquire,
had no recollection of what he said to the defendant
regarding his right to testify or the decision whether or
not he would testify. (20a.). Although Newman had
represented the defendant in several criminal cases before
this case, he had no recollection of ever telling the
defendant that the decision whether or not he would
testify was up to him. (29a., 30a.). Furthermore
Newman could not say what his general practice was in
1988. (36a., 43a.). Finally, Newman said he could not
say whether the defendant acquiesced in counsel’s
decision not to put him on the stand, or whether the
defendant made a personal decision not to testify. (40a.,
-65-
38a., 45a.).
Under the circumstances, the P.C.R.A. Court’s
finding that counsel had informed the defendant of his
right to make the ultimate decision whether or not he
would testify is a presumption which is not supported by
the record. In Johnson v. Zerbst, supra., 58 S.Ct. At
1023, the Supreme Court said that courts should not
presume a waiver of a fundamental Constitutional right
by acquiescence.
Furthermore, the P.C.R.A. Court’s finding that
the defendant was knowledgeable about the court
procedure because of four previous criminal proceedings
is irrelevant. A defendant’s acquired practical knowledge
of the criminal justice system cannot be a substitute for
competent professional advice from counsel. United
States v. DiSalvo, supra.; DeLuca v. Lord, supra.
-66-
Likewise, the fact that counsel told the jury in his
opening statement that they may or may not hear from
the defendant and told the jury in his closing argument
that the defendant had the right not to testify, or that the
trial Judge told the jury in his instructions that “it is
entirely up to the defendant in each criminal trial whether
or not to testify” is not a substitute for competent
professional advice from counsel.
In addition, the P.C.R.A. Court’s reliance on
Commonwealth v. Bazabe, supra., is misplaced because
the defendant in this case is not claiming that counsel was
ineffective for failing to put him on the stand. Nor is this
defendant claiming that counsel’s advice that he not
testify was unreasonable.
In this case the defendant contends he was
deprived of a fundamental Constitutional right because
counsel’s waiver of that right was not an “intentional
-67-
relinquishment or abandonment” of that right by the
defendant. There cannot be an “intentional
relinquishment or abandonment” of the right to testify
unless the defendant understands that the ultimate
decision whether or not he will testify must be made by
him after full consultation with counsel.
The evidence introduced at the hearing on
January 30, 1997, does not support a finding that the
defendant intentionally relinquished or abandoned his
right to testify. On the contrary, the evidence supports
the conclusion that the defendant merely acquiesced in
counsel’s decision not to put him on the stand.
2. COUNSEL WAS INEFFECTIVE FOR
FAILING TO ENSURE THAT THE
DEFENDANT’S WAIVER OF HIS
CONSTITUTIONAL RIGHT TO TESTIFY WAS
KNOWING AND VOLUNTARY.
-68-
When defense counsel fails to inform a defendant
that the ultimate decision whether or not to testify
belongs to the-defendant he neglects a vital professional
responsibility to ensure that the defendant’s right to
testify is protected and that any waiver of that right is
knowing and voluntary. United States v. Teague, 953
F.2d 1525, 1534 (11% Cir. 1992); Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984).
In this case a fair reading of the P.C.R.A. record
suggests that counsel probably did not inform the
defendant that the ultimate decision whether or not to
testify was to be made by the defendant. The defendant’s
testimony at the P.C.R.A. hearing was clear, consistent
and uncontradicted: counsel never told him the decision
whether or not to testify was for him to make.
Furthermore, the defendant believed counsel had the
-69-
authority to make the decision not to put him on the
stand. Counsel’s testimony that he had no recollection of
what he told the defendant and could not recall what his
general practice was in 1988 does not contradict the
defendant’s testimony.
Therefore counsel’s performance was not within
the range of competence required of attorneys in criminal
cases and the defendant did not receive reasonably
effective assistance of counsel. Strickland v.
Washington, supra.; McMann v. Richardson, 397 U.S.
759, 770-71, 90 S.Ct. 1441, 1448-49, 25 L.Ed.2d 763
(1970).
3. THE WAIVER CF DEFENDANT’S
RIGHT TO TESTIFY BY COUNSEL AND THE
INEFFECTIVE ASSISTANCE OF COUNSEL IN
THAT REGARD UNDERMINED THE TRUTH
DETERMINING PROCESS AND PREJUDICED
-70-
—- —_—
sere ee re Oe eee eee eee
eo eee eee ee eee
THE DEFENDANT.
In order to establish actual prejudice a defendant
must show that there is reasonable probability that but
for the act or omission of counsel the outcome of the
trial would have been different. Commonwealth v.
Rainey, 540 Pa. 200, 656 A.2d 1326 (1995); Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); Commonwealth v. Ellis, 662 A.2d
1043 (Pa. 1995).
It is clear from the evidence introduced at the
P.C.R.A. hearing on January 30, 1997 that the defendant
would have testified at trial except for counsel’s decision
not to put the defendant on the stand.
There is also a reasonable probability that the
outcome of the trial would have been different if the
defendant had testified at trial.
ce
The conclusion reached by the P.C.R.A. Court
that the defendant’s testimony at trial would not have
changed the outcome is a presumption which is not
supported by the record.
First, the P.C.R.A. Court refused to allow the
defendant to testify about the events of November 14,
1986 during the P.C.R.A. hearing on January 30, 1997.
Instead the P.C.R.A. Court confined the defendant to
testimony directly related to the question whether or not
the defendant was deprived of his right to testify. (69a.,
70a.).
Second, the P.C.R.A. Court’s conclusion that the
defendant was not prejudiced because the defendant’s
testimony would have been inconsistent with Robert = =—>
Barrett’s testimony is not supported by the record and is
based on an erroneous reading of Barrett’s testimony at
the defendant’s trial.
-72-
The P.C.R.A. Court’s opinion, page 9, states;
“Most significantly, Barrett testified not only that
Petitioner did not participate in the altercation,
but that Petitioner was not even present on the
street.” Page 9 of the Opinion of the Court
Below.”
Unfortunately, the P.C.R.A. Court overlooked
part of Barrett’s testimony. Barrett testified that he
heard the defendant’s voice yelling, “Don’t be crazy,
Bob” while he was fighting with Baroweic. Barrett said
he did not see the defendant because his attention was
focused en the right with Baroweic (N.T., 12-7-88, pp.
423, 424, 426).
Therefore, contrary to the conclusion of the
P.C.R.A. Court, the defendant’s testimony would have
been essentially consistent with Barrett’s testimony.
More importantly, the defendant’s testimony
would have provided a detailed explanation of his actions
after he left the apartment, especially his efforts to get
5
Barrett to stop fighting with Baroweic. (See 1 15a. To
131a. for the defendant’s testimony at Barrett's
Preliminary Hearing and 131a. to 179a. for the
defendant’s testimony at Barrett's trial).
At Barrett’s trial in 1987 the defendant testified
that after he and Barrett finished talking to Art Jones, he
returned to the apartment and Barrett went to buy
cigarettes. A short time later the defendant went outside
again after he heard loud noises out in the street. (138a.).
The defendant observed Barrett fighting with Baroweic.
(139a.). The defendant saw the knife fall on the ground
and he described their struggle to get control of the knife.
(140a., 141a., 142a.). During this time the defendant
remained in front of 4436 Griscom and repeatedly yelled
to Barrett to get away from Baroweic. (14la., 142a.).
In addition, the defendant denied any plan to steal
drugs from anyone (149a.).
-74-
The defendant’s description of the fight between
Barrett and Baroweic and the struggle over the knife was
consistent and unwavering despite a vigorous cross
examination by the prosecutor. (150a. To 178a.).
More importantly, the defendant’s testimony was
exculpatory and inconsistent with the prosecutor's theory
that Barrett and the defendant planned to beat up
Baroweic and rob him. In addition, the defendant's
testimony contradicted the testimony of the
Commonwealth’s chief witness, Colleen DeMarco.
If the jury had heard the defendant’s testimony
and believed him their verdict would have been different.
x3
CONCLUSION
Under the circumstances of this case the denial of
post conviction relief should be reversed, the defendant’s
convictions should be reversed and this case should be
remanded for a new trial.
Date: August 27,1997 /s/ F. Kirk A ire
F. KIRK ADAMS, ESQUIRE
Counsel for Appellant
-76-
CERTIFICATE OF SERVICE
F. Kirk Adams, Esquire, Counsel for petitioner
hereby certifies that he served a copy of the within
Motion for Leave to Proceed in Forma Pauperis and
Petition for a Writ of Certiorari on the attorney for the
Commonwealth of Pennsylvania, Deputy District
Attorney, Donna G. Zucker, Esquire, Chief of the
Federal Litigation Department of the Philadelphia District
Attorney’s Office at 1421 Arch Street, Philadelphia, PA
19102 by U.S. Mail, postage prepaid, the date set forth
below.
Date: 3-8-01 /s/ F. Kirk Adams, Esquire
F. Kirk Adams
Ry ®
IN THE COMMON PLEAS COURT OF
PHILADELPHIA
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA.
CRIMINAL COURT DIVISION
DEFENDANTS
COMMONWEALTH OF _-) AUGUST TERM 87
PENNSYLVANIA )
)
VS. )
)
GEORGE TRUDEL, JR. ) NO. 2299
)
JANUARY 30, 1997
BEFORE: HONORABLE JOSEPH I. PAPALINI, J.
(PCRA HEARINGO
APPEARANCES;
CAROL M. SWEENEY, DA
ASSISTANT DISTRICT ATTORNEY
FOR THE COMMONWEALTH
F. KIRK ADAMS, ESQS.
TWENTY ONE CHESTER PIKE
RIDLEY PARK, PENNSYLVANIA
FOR THE DEFENDANT.
REPORTED BY: BRENDA VARLACK, CSR, CM.
OFFICIAL COURT REPORTER
-78-
pe aaa liemin
MS. SWEENEY:
MR. ADAMS:
CAROL SWEENEY FOR THE
COMMONWEALTH.
KIRK ADAMS FOR THE
DEFENDANT, YOUR HONOR.
(WHEREUPON THE DEFENDANT IS
PRESENTED)
THE COURT:
MS. SWEENEY:
THE COURT:
MS. SWEENEY:
WOULD YOU GIVE ME A
LITTLE SHORT SUMMARY AS
TO WHAT TRANSPIRED AND
WHAT WE WILL BE DOING
HERE TODAY?
YOUR HONOR, WE
ACTUALLY, I THINK, CAN
AGREE ON THIS SHORT
SUMMARY.
OKAY. GOOD
WHICH IS THE SUPERIOR
COURT HAS REMANDED FOR
-79-
THE COURT:
MS. SWEENEY:
A HEARING IN FRONT OF
YOU. THE QUESTIONS
WHETHER THE DEFENDANT
CAN SATISFY HIS BURDEN
OF PROOF THAT HE WAS
IMPEDED FROM TESTIFYING
AS A WITNESS AT HIS
WHOLE TRIAL AND DID NOT
KNOWINGLY,
INTELLIGENTLY AND
VOLUNTARILY WAIVE HIS
RIGHT TO TESTIFY.
BY WHOM?
BY DEFENSE, ACCORDING
TO GEORGE NEWMAN, WHO
WILL BE A WITNESS HERE
THIS AFTERNOON.
-80-
MR. ADAMS:
THE COURT:
MS. SWEENEY:
MR. ADAMS:
THE COURT:
MR. ADAMS:
THE COURT:
MR. ADAMS:
ESSENTIALLY, I AGREE.
IS THAT HIM COMING IN?
YES.
IF HE’S HERE, WE WOULD
CALL HIM AS OUR FIRST
WITNESS.
EXCELLENT TIMING. WHO
ELSE DO YOU HAVE
BESIDES MR. NEWMAN?
MR. TRUDEL. THAT’S IT.
ALL RIGHT. YOU’RE GOING
TO CALL MR. NEWMAN
FIRST?
SINCE HE’S HERE, WE WILL
DO THAT, AND I WILL
AGREE WITH ESSENTIALLY
WHAT CAROL SWEENEY HAS
-81-
MS. SWEENEY:
THE COURT:
TOLD YOU. WE MAY NOT
USE THAT EXACT, THAT
SAME LANGUAGE, BUT SHE
WAS CORRECT THAT IS
REALLY THE ONLY AREA
FOR INQUIRY FOR THE
COURT.
YOUR HONOR, I WOULD
MOVE TO SEQUESTER ANY
WITNESSES BECAUSE
COUNSEL HAS ASSURED ME
THAT THE ONLY TWO
WITNESSES THAT HE
ANTICIPATES CALLING ARE
THE DEFENDANT AND MR.
NEWMAN.
IS THAT CORRECT?
-82-
MR. ADAMS: THAT IS CORRECT.
THE COURT: SO, THERE ARE NO OTHER
WITNESSES? ALL RIGHT.
FINE. GO AHEAD, SIR.
GEORGE NEWMAN:
The witness is hereby sworn and testifies under oath as
follows:
DIRECT EXAMINATION BY MR. ADAMS:
Q Are you a member of the Bar?
A I am.
Q And when were you admitted to the Bar?
A 1975
Q And what areas of practice did you become
involved in?
A Criminal. Criminal Defense
Q In 1988 or 1987, did you come in contact, have
professional contact with George Trudel, the man
-83-
sitting to my right?
Yes |
and, in fact, were you appointed to represent Mr.
Trudel?
I was.
Now, did you represent him a jury trial which
took place in December of 1988?
Yes. I mean, I don’t have a direct memory of
exactly when it was, but | know from looking at
my file it was in ‘88.
Okay, but I suggest to you it was in December of
1988.
I have no cause to disagree with you.
Do you have sufficient recollection of the case to
testify as to whether or not Mr. Trudel testified
during his trial?
It’s my recollection he did not.
-84-
did you speak with hi8m about the subject of
whether or not he would testify either before or
during the trial?
I am sure that during the trial we had discussions.
Were you aware that he had testified about this
case in the trial of another defendant, a man
named Robert Barret?
Yes
And had you obtained the transcript of the notes
of testimony from Mr. Barret’s trial to know
what Mr. Trudel had said during that trial?
Yes
Do you remember that Mr. Trudel had also
testified at the preliminary hearing for Mr.
Barret?
Upon looking through the materials, some of
which I had, some of which were sent to me by
-85-
the District Attorney, | was reminded of that.
Do you recall now, and can you testify today as
to what you may have said to Mr. Trudel and
what he may have responded to you when you
were discussing the subject of his testifying at his
jury trial?
| have no memory of the specific conversations
regarding his testimony, I can say that it was to
my recollection that I felt it would be a bad idea
for him to testify. That was my belief.
At some point, either before or during the trial
itself, the jury trial, did you actually make a
decision, that you can recall now, that you were
not going to put the defendant on the witness
stand or not have him testify?
MS. SWEENEY: I OBJECT TO THE FORM
OF THAT QUESTION, YOUR HONOR.
-26-
THE COURT: WHY DON’T YOU
REPHRASE IT.
Did you make a decision that you can recall now
regarding that subject?
I made a decision about what I believe would be
the advisability of him taking the witness stand;
that’s correct.
And what was that decision?
I decided that, at least from my perspective, it
would be a bad idea for him to testify.
And did you — do you recall now explaining that
to Mr. Trudel at any time?
I don’t recall the discussion
Do you recall saying to him, “I’m not going to
put you on the witness stand”?
I don’t remember the words I used.
Do you recall anything that he may have said to
-87-
you about that subject, his testifying?
A I don’t recall the discussions at all, either, what |
said to him or what he said to me. I’m certain
there were discussions, but the substance of them,
how they went down, I couldn’t tell you at this
point in time.
MR. ADAMS: NO FURTHER
QUESTIONS, YOUR
HONOR.
CROSS EXAMINATION BY MS.
SWEENEY
Q Would you give us a little more information about
your background; when you came out of law
school and were licensed to practice in
Pennsylvania, for whom you worked, for how
long, and how you developed a private practice
as a lawyer specializing in criminal defense work?
-88-
Sure. | interned for the public defenders for two
years prior to graduation. | worked for the public
defenders, which is purely a criminal defense
organization here in Philadelphia, for four years.
From the summer of 1975, I became a member of
the Bar on October 3 of 1975. I resigned from
the Defenders on October 15" of 1979. Um, I
kept the various pieces of paperwork. I can recall
exactly when those things occurred. I left the
Defenders and went into a private practice. It
was an association, although not a partnership,
with a couple of other lawyers.
I clerked for the Honorable Richard B. Klein for
three years, and also had a practice on the side,
um. which I believe did not interfere with my
clerking duties which were largely to do research
on opinions, um, and also to work on, um,
-89-
occasional civil motions.
At that point in time, there were very few civil
motions that were assigned to the Judge, though
they were assigned to the Criminal Program.
Um, I resigned my position with Judge Klein in, I
believe, the beginning of 1983.
By that time, I had formed a partnership with two
other criminal defense lawyers, and I was in
partnership until 1986, when I formed the —
partnership with my present partner, David
McLaughlin, and I’ve been partners with Dave
since 1986.
And I have, except for a very brief dabbling in
civil work during that very initial period prior to
forming the partnership, the first real partnership
I had I did a tiny bit of civil work, but I did not
like it, and since the early ‘80s, I’ve practice
-90-
exclusively criminal law.
Can you estimate, although it’s a very tough
question to answer, the number of jury trials that
you have tried; say, for instance, in the period
after leaving the Public Defenders’s Office and
while in Private Practice until you tried this case
in December of 1988?
Scores of jury trials. I couldn't tell you how
many exactly. As you well know, a lot of trials in
Philadelphia are nonjury, but | did scores of trials.
I had done — I couldn’t estimate how many
homicide trials I had done.
That was going to be my next question.
Well, anticipating that, I had probably done 20,
30 homicide trials, and what percentage of those
were juries, I couldn’t say. Some were nonjuries.
That’s all prior to the time that you began the
-9}-
trial of this case with Mr. Trudel?
That’s correct. To date, I’ve handled well over a
hundred homicide cases. How many, | couldn’t
tell you.
When you were appointed to represent Mr.
Trudel in 1987, was that you first contact with
him or had you represented him in other matters,
as well?
That was my first contact with him, as well.
Isn’t it true that you remained his attorney
through not only the trial and conviction in this
case, but through the direct appeal of the case to
the Superior Court and through the petition for
Allocatur to the Pennsylvania Supreme Court as
well?
That’s correct.
As a result of your being court-appointed in that
-92-
BART RAR LAM essen Sanh aA COPE Serve ey
ibe Or ecatns S20
matter, did you prepare a fee petition to
document the work for which you believed you
were entitled to compensation.
Yes.
MS. SWEENEY: YOUR HONOR, I HAVE
COPIES OF THAT. PLEASE, IF WE MAY
MARK THAT AS COMMONWEALTH’S
EXHIBIT C-1 AND SHOW IT TO THE
WITNESS FOR IDENTIFICATION.
THE COURT: OKAY.
THE TIPSTAFF: C-1 SO MARKED.
Counsel, is that a xeroxed copy of the fee petition
you submitted following completion of your work
for this defendant?
If you’ll indulge me a moment.
(WHEREUPON THE WITNESS REVIEWS
THE DOCUMENT.)
-93-
_
Yes. that would be the first fee petition. There
were probably subsequent fee petitions for the
appellate work. | don’t know if this — I think this
fee petition takes you through the filing of the _
first notice of appeal.
In April of 1989?
Correct. There would have been subsequent
work for which I would have billed and submitted
fee, subsequent fee petitions, which are probably
contained within the fee section of the file.
Is the information that’s on here an accurate
reflection of the work that you performed?
It should be. I keep time sheets which are pretty
meticulous, and I basically have my secretary
transcribe them into legible English. In other
words, she types them because my handwriting is
close to indecipherable, as you've discovered.
-94-
bc Aayeed and tol AS te ab
A a aa le
eT ee
Then, I review it, and I make sure that it appears
to be accurate, as accurate as it can be after
reviewing, after the events have transpired, but |
have no reason to believe that there’s anything
that’s inaccurate in here.
If | represent to you that that shows that you
billed for seven conferences with the Defendant
and two telephone calls, would that comport with
your recollection of meeting the defendant on
numerous occasions to discuss his case?
I have no reason to believe that that’s not
accurate.
This defendant, in fact, was on bail at the time
leading up to his conviction. Isn’t that true?
That is true.
In fact, he was on bail due to a large part of the
work that you succeeded in accomplishing in not
-95-
only getting him out on bail, but then litigating in
Superior Court, the Commonwealth’s Petition to
Revoke his bail. Isn’t that correct?
Yes.
Which, isn’t it fair to say, would make it a fairly
unusual court-appointed homicide case, that you
had a defendant out on bail to come out and meet
with you.
It was complex. There is no question about that.
There were some things I did that I had done for
the first time.
Isn’t it also fair to say that this was an unusual
case to you to the extent that, in fact, in this
situation you had a defendant who already had
testified twice under oath in the trial of his co-
defendant, Robert Barret, and already had given
two signed statements to homicide detectives, all
-96-
concerning the issues in this case? Isn’t that true?
Yes. Yes.
And isn’t it also true that as a result of that
unusual posture, you didn’t even take any
interview notes when you met with the defendant
for the first time about the case?
From looking through the File, | have no
independent recollection, but from looking
through the file, that seems to be accurate. There
may be some scratch notes in the file, um, but no
lengthy interview.
Finally, Mr. Newman, isn’t it fair to say that this
was an unusual case at the time that you were
trying it, because the posture of this case was that
you had a codefendant, Robert Barret, who had
been previously tried, who was willing to come
into Court and testify that he was the person who
-97-
stabbed the victim in this case, and that your
client was not involved. Isn’t that true.
That’s true.
So, isn’t that unusual for you to do, at least as of
1988?
It’s not real common. That’s correct.
You represented the defendant in at least two
other matters; two that were criminal trials here
in Philadelphia or criminal proceedings here in
Philadelphia, in addition to this homicide case.
Isn’t that true?
Yes
And isn’t it also true that one of those two
matters was a burglary charge for which the
defendant went to trial as a nonjury trial, and you
represented him, and he was found not guilty? Is
that true?
-98-
Yes
And it’s also true, is it not, that the second matter
was a case for which the lead charge was
aggravated assault, and that at some point after
the defendant’s conviction in this case, you
represented him, and it resulted in a guilty plea to
disorderly conduct? Does that comport with
your recollection?
I discussed this matter with you, and I had no
independent recollection of the resolution. | did
recall the specific resolution. I did recall that
after Mr. Trudel’s conviction of second degree
murder, we wanted to resolve the aggravated
assault case, and I recall, it was my recollection
that we resolved it in some pretty satisfactory
manner. If it was pled as a disorderly conduct,
that was certainly what I regarded as a
-99-
satisfactory resolution.
Q I’d like you to focus your attention first upon the
_ burglary case for which you represented the
defendant. In that matter you were retained by
the defendant or his family. Isn’t that true?
A Yes
Q And that trial went to trial before the second
degree murder case. Isn’t that true?
A yes, it did.
Q Can you recall discussing with the defendant, in
order to prepare for that trial, his right to testify
as a defendant in the criminal case?
A Again, I don’t have a specific recollection of what
I said to him regarding that case, and I don’t
remember very much of the details. 1 mean, I’m
more likely to remember facts of a case, and I
remember something about him being in a car,
-100-
maybe asleep in a car, and that’s all I remember
of that case. But the fact patterns are what
usually stick out in my mind.
Well, in terms of that fact pattern, did you have a
discussion with the defendant in that case to
prepare him to testify for the trial in the burglary
case?
I probably did, but there is no way I could recall
that. I mean, I represent hundreds of people
every year, and to remember the specific
conversation I’ve had with each defendant — I
mean, over my career I’ve represented thousands
of people, and I was a public defender. It went —
probably went into the tens of thousands, at least
in terms of people who I would interview or talk
to.
So, the specifics, of course, unless there’s
-101-
something startling about the particular
conversation, I’m not going to have a specific
recollection. I can only speculate as to what |
might have said to him in the burglary case.
I don’t recall if he testified or not. So my guess,
and it’s only a guess, is that he didn’t — that the
case was simply not made out by the
Commonwealth. That’s my vague recollection.
It may have even been a Demurrer sustained.
Do you remember specifically, that you
specifically told the Defendant in either of the
other matters that you represented the defendant,
that he had the right to testify if he wanted to?
I don’t recall that. That I can’t tell you.
As you prepared for trial, is it fair to say that your
theory of Defense, multifaceted as it ren have
been. included the testimony of a co-defendant
-102-
that your defendant didn’t even do it,
corroborated by other witnesses whom you
brought to Court to testify, and included a
vigorous attack upon the testimony of the
Commonwealth’s witness, Colleen DeMarco?
Let me agree with part of what you said. Um, I
had Mr. Barret, who I though was a pretty good
defense, and I think the rest of the witnesses were
in some way presented to impeach the testimony -
of colleen DeMarco.
I recall, from having looked through my file, what
I recall is Mr. Barret was the only offensive part
of my defense, and the witnesses were used to
attack Colleen DeMarco’s credibility. That’s my
recollection at this point in time.
Do you recall calling Mr. Barret’s brother,
Kenneth Barret, to testify that Mr. Barret, the
-103-
Co-defendant, Robert Barret, had admitted to
him being the stabber in the case?
| don’t recall that part. I don’t disagree with you
that that occurred. I just don’t recall the
brother’s testimony at all without reading it. If!
read it, I’m sure it would come back to me.
As an experienced defense attorney of some 13
years experience, when you were getting ready
for try this homicide case, did you prepare the
defendant, prep him, in the colloquial terms we
use, for the inevitability of him testifying, should
he choose to do so?
-I’m sure I did. I’m sure I prepped him, but what
I — but remembering preparing him or what I told
him, I can’t remember. Even if 1’m pretty well
convinced I won’t call someone, particularly a
defendant, I’m going to prep them, at least
-104-
minimally; so, that if push comes to shove, I can
shift gears and try and get it right. In a murder
case, I expect I would prep someone to testify.
Wouldn’t it be your standard practice as a
defense attorney to prep someone to testify?
Yes
And wouldn’t it be your practice of someone in a
murder case to evaluate with the defendant the
strategy, advantages, and disadvantages of the
defendant taking the stand to testify?
I would evaluate it. How much I would share
with the client is a fluctuating thing. I mean, it
really depends on the client. It really depends on
a lot of factors. It depends sometimes on the
relationship of the lawyer and the client. It
depends on whether or not you've been retained
or not, or whether you’ve been court appointed.
-105-
Um. I think that sometimes there’s actually more
candor toward a client when you've been
appointed, because it’s not an issue for the client
to, frankly, to put it bluntly and crudely — they
don’t have a great deal of other, of other options.
I think when you’re retained, there’s this
unfortunate restraint on counsel because clients,
um, certainly, to my experience nowadays, are
mercurial in terms of counsel.
| have guys coming over to me from other
lawyers constantly and vice versa, there’s a real
concern about just what you say. You have to
pick and choose your words very carefully.
Mr. Newman, as you sit here today, is there any
discussion at all you can remember with this
defendant about his right to testify?
Not about the right to testify. About the
-106-
3
%
|
2!
2
:
:
testimony itself, again, I have no specific
recollection, but I would — there is no what that I
didn’t talk about what he would testify to or ask
him what he would talk about.
I would, I’m sure I went over what I
thought were the weak points or the strong points
of the testimony. I’m sure I went over the
testimony entirely. é
Isn’t it fair to say you did this many times, both
before the trial and during the trial?
How many times I went over it with him, I
couldn’t say. I could only guess it was more than
once, but I couldn’t say definitively. I would
presume it would have been more than once. ]
would presume that we would have gone over it.
Some of the meetings that we had — you
point out there were a number of meetings with
-107-
regard to not only his own testimony, but other
witnesses; Barret, Colleen DeMarco, who knows
who. I went up and spoke with Colleen
DeMarco.
Sir, I would ask to confine yourself to the
question that I asked which is: Do you know how
many times you spoke to the man about
testifying?
I couldn’t — I couldn’t answer that . No.
Is it fair to say that you did speak to the man
about testifying before the trial even began?
I’m certain I did.
And would that comport if I asked you to recall
your opening statements, page 31 of December
6" of 1988, with your explanation to the jury
that:
“You may hear from the defendant, who
-108-
DAE RG TRL ATE, EICRA re NS a SE ee MO Fle g oN REN REIS
has no obligation to testify. You may hear from
him; you may not. I’ll speak more on that later,
but the bottom line is the Commonwealth has the
burden to present that kind of evidence; the
quality of evidence that convinces you beyond a
reasonable doubt.”
Do you remember telling the jury that?
I don’t specifically remember it, but that’s
certainly the kind of statements I would have
made to a jury.
Do you remember telling the jury, “You may or
may not hear from George. We haven’t decided
that yet”? Do you remember that?
I don’t recall. I don’t remember that, but you've
indicated that, and I have no doubt that’s what I
said.
Having heard or being refreshed that that’s what
-109-
you said, does it help you remember any
discussions you had with this man in a murder
case about his right to testify?
Again, I don’t recall specifically what we talked
about in terms of his rights, what I explained to
him in terms of what exactly were his rights; and I
can clarify that if you’d like me to.
To the extent that it’s relative to the question,
what, if anything, do you remember about the
discussions? Specifically, 1 would like you to
respond. If it’s something beyond that, then the
question hasn't focused on that.
I’ll give my answer. Perhaps if it’s not
appropriate, you know, you’re a good lawyer.
You'll know how to cope with my answer. I
know I currently tell people — it’s what I almost
call the “Holy Trilogy”. There are three decisions
-110-
which are those for a defendant to make and the
defendant’s alone, and those decisions are
whether or not to plead guilty, whether or not to
waive a jury or not, and whether or not to testify.
I currently tell people that. What I told him
back 1988, I can’t tell you, and I can’t give you
any assurance that that’s what I told people back
then. My ability to represent people, what I tell
them, how I deal with them; my client relations
have all evolved over the years, and in a way,
saying what I say now kind of clouds my abilities
to go back and say what I specifically told people
back then.
| just don’t have a recollection. It may
sound stupid from your mind. I’m not able to do
that, but I can’t specifically recall what I said to
people in terms of preparing them, in terms of
-111-
telling them exactly what their rights are.
Well, with respect to this case, if] ask you to
focus upon the closing statements that you gave
to the jury in this exact same case, starting at
page 458 of December 8” of 1988, speaking of
George Trudell:
“He did not take the witness stand. He does not
have to. You all know that. You heard it when
you were sitting out there. You heard it again
from his Honor when he first instructed you.
You heard it from me when I first addressed you
at the beginning of the trial. He does not have to
take the witness stand.
Why? Because again, it would be crazy if we said
a person doesn’t have to prove himself innocent;
then, we say they have to take the witness stand
explain themselves”.
-112-
BS PPE AES Be et OBE NE ooitetesiens — el lintel
Do you remember that focus of your closing
argument to the members of the jury?
Again, I hear you reading it, and I’m sure that’s
what I said.
Do you remember telling the members of the jury:
“People don’t take the witness stand for
many reasons. You haven't heard from George.
So, I mean, you never heard statements attributed
to him. You have heard about some of his actions
or nonactions, but you must understand, you
swore under oath that you would not hold it
against him if he elected not to take the witness
stand.”
Do you remember using those words when
addressing the members of the jury in your
closing arguments?
I’m sure that’s what I said, having heard it.
-113-
Does that, having heard it, refresh your
recollection, of your decision that the defendant
made not to take the stand in this case.
It doesn’t. You've kind of shifted the question;
did he, did I. I sat it doesn’t refresh my
recollection about the specific conversations did
he decide not to take the stand. Did we have a
discussion about that? I can’t answer that.
Again, I mean, I’m still going back to the same
thing; what I say in an opening or a closing is for
the jury’s benefit.
Well, you wouldn’t misstate something, would
you, Counsel?
I’m not going to tell them what the discussions
were between my client and myself. That’s
attorney-client privilege. At that point in time,
I’m not going to share that with them. I’ve had
-114-
district attorneys object to language very close to
that.
But no one objected here.
Well, I know they didn’t there, but what my
concern is that I say something that’s not going
to be objected to, that’s not going to be
construed against my client.
So if you represent to the members of the jury, he
decided not — he elected not to take the witness
stand, it’s your testimony now that that may not
reflect reality?
Well, he certainly acquiesced or agreed or
disagreed or whatever he did, but he did not take
the witness stand, and I’ve got to present that in
the light that I think will reflect the best upon him
for the jury. That’s my concern in closing.
And you continued to address that to the
-115-
members of the jury by saying, bottom of page
459:
“Some people are incredibly nervous on
the witness stand. If you’re on trial for murder,
you can imagine how nervous you would be.
Some people are articulate, and some people are
not.
Witnesses, other than the person who is
accused, have to appear in court. If they’re
subpoenaed, they take the witness stand. George
Trudel had a right to decide that he was going to
say, “I’m not going to take the witness stand; I
don’t believe you proved this case against me,
You have not —” and at that, Mr. Carpenter, the
DA, objected.
Do you remember using that language, again,
telling the members of the jury that the defendant
-116-
1 Chanel ‘
J
£
'
decided not to take the witness stand? Do you
remember saying that to them?
| don’t specifically remember, but I’m sure I said
that to them.
Wasn’t it correct —
I can’t tell you exactly what the conversations
were between Mr. Trudel and myself. I can’t tell
you whether or not his not taking the stand was
acquiescence, whether it was an affirmative
decision or what. I think that the statement |
made was an accurate statement for purposes of
jury argument
Counsel, haven’t you on many occasions stood
up and tried to explain away the defendant’s
election not to testify by saying to the members of
the jury, “My client has relied upon me to
recommend that he not testify”? Haven’t you
-117-
Q
both used that argument and heard other people
use that argument?
I’ve used a whole variety of different arguments,
some of them that have been objections like Mr.
Carpenter objected to here. Sometimes I’ve used
arguments that — where the objections were
sustained.
My question — that’s not my question. I°d like
you to try and answer the question. My question
is, haven’t you personally and haven’t your heard
other people tell members of the jury that it’s the
lawyer’s decision that a defendant decided not to
testify, to try and take the weight on your
shoulders or off the shoulders of the defendant?”\
I don’t know that I heard, that I heard people say
that.
Haven’t you?
-118-
I don’t think I have. I don’t think I’d say it’s my
decision. I don’t think I would say that.
As a way to explain to the members of the jury
that it’s not the defendant who’s up there, it’s
him following my advice; that that’s why he’s not
up there?
Well, I’ve always been aware that it’s not my
decision ultimately. So, I don’t think 1 would
have said that to the jury, because I think that
would be actively misrepresenting to the jury.
Well, were you aware as far back as 1988, with
13 years’ criminal law experience, that it was not
your decision, ultimately, whether the defendant
took the witness stand?
Yes
and didn’t you convey that to them?
You’ve asked me the same question about four
-119-
times. I can’t say specifically that I said that to
him. I know it’s my practice to do it now. I
know that even in 1988 most judges colloquied
defendants; I know even earlier than 1988.
I was surprised when you informed me there was
no such colloquy in this case, but as to whether
or not I specifically had that decision, listen, it’s
your call about whether you testify, not my call. I
can’t tell you that I related that to him.
Wasn’t it your practice back then to make sure
that every murder defendant on trial with the
potential of life imprisonment on the line knew
the full extent of what his rights were?
I can’t say specifically what I told him. No.
With 13 years’ experience under your belt at the
time of this trial, can you remember any murder
trial in the 20 or 30 that you did before this,
-120-
where you had a specific discussion with the
defendant about testifying or not?
No.
Not one?
No, I don’t remember the specific conversations I
would have had with various clients.
Can’t you remember what your practice was with
13 years and 20 to 30 murder tails under your
belt in terms of making sure a defendant knew
that it was hi right to testify, if he chose to do so?
I can’t specifically tell you what I would have
done in each case, and I wasn’t just trying murder
cases. I was trying a whole slew of cases, and in
many of those cases, the real discussion, if any,
and I emphasize “IF ANY” is during the trial
when you turn to the guy and say, “I don’t think
-121-
it’s a good choice for you to testify.” And the
guys says, “Okay”. You may find that hard to
believe, but often, that’s the way it really occurs.
In murder trials, sir, when a defendant gives you
an explanation of whatever it was he might want
to —- you prep him —
Uh-huh.
— do you know, don’t you explain to him that it’s
his right to testify and tell the jury, whether you
agree it’s smart or not, that it’s his right to
testify?
I currently do, but I can’t tell you what I did back
in the ‘80's.
Was there ever a time when you didn’t, in 13
years’ trial experience, 1988, when you weren’t
telling people that it’s their right to decide
whether to testify?
-122-
I can’t tell you what I did back then.
Isn’t it fair to say, Mr. Newman, that you were
_ personally, not just professionally, but personally
devastated by the verdict that sent this man to jail
for the rest of his life?
I took the loss pretty hard. I took the loss pretty
hard. It was A—
That’s a “Yes,” isn’t it?
It is. Yeah. I don’t know. I mean I’ve reviewed
the letter that 1 wrote to him after this, and, um, I
took it pretty hard. Um, I also wanted to convey
to George in a very clear way that I took it very
hard. I didn’t take it lightly. :
Um, I mean, I think that’s an accurate
statement. I, you know, I don’t regard him as a
friend or a close associate or anything of that
nature, but I get pretty invested in my trials, and |
-123-
took this pretty hard.
You may get invested in trial, but in this case
where this man was sent to jail for the rest of his
life, isn’t it fair to say that you carried the burden
of that with you for a very long time?
Yes.
Isn’t it also fair to say that as you represented the
defendant through the Superior Court Direct
Appeal and through the Petition for Allocatur,
you looked for any possible issue that you could
raise to try and rectify what you thought was the
injustice of this case?
Yes.
In any of the work that you did, did you ever
raise the question that the defendant did not
testify, and the decision to do so was not
knowingly, and intelligently made?
-124-
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QOH © A
No.
Not once?
No.
Did the defendant at the trial ever say to you “I
want to testify”?
I don’t recall him ever saying that to me.
If the defendant had said to you, “I want to
testify,” would you every have prevented him
from testifying?
That I would not have done. Again, I’ve always
been aware that it’s his right to testify. I may not
have earlier in my practice been as assiduous as I
should have been in advising clients of that. It is
their right, not mine. Again, I just can’t answer
that. I can’t give you a “Yes” or “No”.
When you say “earlier in your practice,” you
mean the 13 years that you had been practicing
-125-
exclusively criminal law?
Yes.
You’re referring back that far?
You know, it’s funny, Miss Sweeney, but I’d like
to think I’m a much better lawyer than I was two
years ago, and it may sound ludicrous to you, but
I like to think that I continue to learn and
continue to learn how to deal with my clients and
how to deal with my cases and how to deal, you
know, with the whole system, and I know that
involves that I change in terms of what I do, and
hopefully, I improve.
Have you ever prevented a Defendant who
wished to testify from testifying?
That I’ve never done.
Have you ever told the defendant you’re just not
going to call them, or in any way impeded him if
-126-
Beeb casei
A
he wanted to testify?
If he articulated to me, if he said, “I want to
testify,” I’d say — 1 might have said to fie, if he
had said that — again, speculating because I don’t
recall what he said to me, but if he had said, “I
want to testify,” I would have said to him, “It’s a
bad idea, but if you insist, go ahead.”
That would have been your practice?
Q
A Yes
Q Is that correct?
A With regard — again, I can’t tell you what I
informed him, but if he insisted on testifying, |
would not have prevented him.
Isn’t it true, as you sit here today, you have no
Q
recollection that he told you he wanted to testify?
A That’s correct.
Isn’t it also true that after correspondence back
Q
-127-
and forth for years while you continued to
represent him, not once did this defendant
complain to you that he had wanted to testify at
his trial, and you denied him the opportunity to
do that?
I recall no complaints.
Well, did you have a chance to look through your
file?
I not only call no complaints, but saw nothing in
my file that would in any way refresh my
recollection as to any complaints.
So, as far as you know, the answer is he never
complained to me verbally or through a
correspondence, and no one on his behalf
complained that he was denied his right to testify
until this PCRA was filed here in 1992? Is that
right?
-128-
To my knowledge, that’s correct.
You engaged in a series of communications with
the defendant over the years as he was working
and you were working on the appellate phase of
the case. Is that correct?
A Yes.
Q Do you remember receiving from the Defendant a
note early on after the verdict where the
defendant wrote to you and asked you various
questions about commutation or how long he
would have to serve his sentence?
I don’t specifically remember, but if you show it
to me, I’m sure it will refresh my recollection.
THE TIPSTAFF: 2-C MARKED.
MS SWEENEY: DEFENSE COUNSEL HAS
A COPY AND THERE’S A COPY FOR THE
COURT.
(WHEREUPON, A COPY IS GIVEN TO THE
WITNESS.)
| don’t recall this letter, but . . .
You don’t recall whether you received it or not?
If it’s in my file, if it’s a xerox of something that
was in my file, I certainly received it. I just don’t
recall it.
Can we agree that it’s in there, that that’s a copy
of a document that’s in there?
I’m sure if you represent that this is something
you xeroxed from my file, I’ll agree with you.
Do you remember writing back to the defendant
on February 8" of 1989 attempting to answer the
questions he raised and describing your personal
reaction to his verdict as being “still devastated
by the verdict that we had in your case”?
I remember seeing a letter in which I indicated
-130-
that. Um, I’m sure I wrote back to him.
MS. SWEENEY: YOUR HONOR,
COULD WE MARK THAT AS
COMMONWEALTH EXHIBIT 3?
THE TIPSTAFF: C-3 SO MARKED.
I have a copy.
As I do with all my clients.
(The Exhibit is given to the witness. )
Isn’t it true you describe yourself there as “still
devastated” and conclude with “deep regrets and
best regards”?
Yes
Isn’t it next true that the defendant sent you, for
your review, pleadings that he had prepared of
such issues to be complained of on appeal; two
sets of documents?
He may have.
-131-
MS. SWEENEY: MAY WE MARK IT
COLLECTIVELY AS
COMMONWEALTH EXHIBIT C-4?
THE TIPSTAFF; C-4 SO MARKED.
MS. SWEENEY: May I mark it A and B?
THE TIPSTAFF: C-4A and B.
MS. SWEENEY: THEY ARE A SET
CALLED “ADDITIONAL MATTERS
TO BE COMPLAINED OR ON
APPEAL.” AND THEN THE PAGE
THAT BEGINS “IN THE CASE OF
COMMONWEALTH VS. TRUDEL-—“
THE WITNESS: THAT’S WHAT?
(Whereupon, the document is given to the
witness.
Q Mr. Newman, isn’t it true that in all those pages
of material that were just marked collectively C-
-132-
4A, not once does the defendant complain that
you had ever prevented him of his right to testify
or state anywhere that he had wished to testify at
his trial?
A I can’t answer that without reading everything in
here, but if you represent that as correct, Ill
accept that.
Q In response to those pleadings, do you remember
writing to the defendant on August 8” of 1989?
A Again, you need to refresh my recollection.
ss
MS SWEENEY: YOUR HONOR, MAY
WE MARK AS C-5, PLEASE, A
LETTER ON NEWMAN AND
MCLAUGHLIN LETTERHEAD.
| THE TIPSTAFF: C-5 SO MARKED.
: (Whereupon the Exhibit is given to the
Witness.)
-133-
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&
3
Q Counsel, isn’t it true that when you wrote to the
defendant on August 8", you told him:
“If you believe I’m wrong in terms of how
you analyze the appeal issues, you
certainly may petition the Court for an
Appointment of new counsel and request
permission for your appeal to be delayed
so that new counsel may prepare an
alternative brief. I don’t know whether
the Court will permit you to do that, but
4 you can certainly try”.
“You should make whatever efforts you
can to secure your freedom,”.
Isn’t that what you told the defendant?
A In part.
Q Did he ever, to your knowledge, attempt to
obtain another counsel to represent him for the
-134-
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ekemeess
Nate 3
&
ee.
3
Appellate stage of his case?
] have no knowledge of him having done that.
As far as you were concerned, he continued to be
satisfied with your representation. Is that
correct?
To my knowledge, he was.
And even after you said, “Do anything you can to
try and get your freedom,” the defendant never
complained that he wanted to testify at his trial,
and you didn’t let him, did you?
I’m sorry. Can you repeat that?
Even after you told the defendant, “You may be
able to get a new lawyer if you ask; you should
do whatever you can do to secure your freedom,”
he still didn’t say, I wanted to testify at my trial,
and you didn’t let me, did he?
He did not offer that to me.
-135-
Q You then communicated with the defendant in
April of 1990, when you sent the defendant a
copy of the brief that you were filing for the
Petition for Allocatur. Do you remember that?
A Again, if you aim it to me, I’ll be happy to look
at it.
MS. SWEENEY: MAY I HAVE
MARKED THIS MARKED AS C-6?
DATE APRIL 5™, 1990, A COPY OF A
LETTER.
THE TIPSTAFF: C-6 SO MARKED.
(WHEREUPON, C-6 IS GIVEN TO THE
WITNESS.)
Q And, Mr. Newman, isn’t it true you told the
defendant, “I must tell you it is rare that the
Pennsylvania Supreme Court grants allowance of
appeal, but | am ever hopeful that this Court will
-136-
grant you the justice you deserve”?
Yes.
Now, as these years are going by from the time of
the trial, and your common practice of discussing
with the defendant his right to testify was
evolving, did you ever say to yourself, “Gee, I
dropped the ball with George Trudel. I never
told him he had the right to testify”?
By 1990, I would have had no recollection of
what those conversations were, and I certainly
never told him that.
Sir, you had a good recollection of this case as of
the denial of the Allocatur Petition and the
Defendant’s attempt to secure help through yet
another counsel. Isn’t that true?
| had a good idea of what the legal issues were
that I wanted to raise. I had received a pretty
-137-
extensive — you just showed me a pretty extensive
“additional matters to be complained of on
appeal,” and what I was essentially doing in the
letter in response to that was saying, I’m not
going to include any of these issues. Indeed, it’s
too late.
And, furthermore, I wouldn’t include them, and if
you don’t like it, you can get another lawyer.
That’s essentially what that letter was really
saying. It was saying in a very polite form, but
that’s what it was saying.
As you moved on in your career and dealt with
the devastation of this case. Did it ever occur to
you that you had been less than competent in
discussing with the defendant his right to testify?
No.
You then heard, after the Supreme Court in this
-138-
State declined your Petition for Allowance of
Appeal, that the defendant had approached
another attorney by the name of -- |
John Scott.
John Scott, with the intent, apparently, of
proceeding with a PCRA Petition. Isn’t that
right?
I remember John Scott contacted me. I believe I
sent him the transcripts, I think, and perhaps
other materials. I don’t recall what he requested.
There may be a cover letter in the file indicating
what I sent him.
Well, first, you wrote to George Trudel on
November 6" of 1990 and informed him that the
result that you had anticipated, based on common
practice, was in fact the result in the case: The
Pennsylvania Supreme Court denied Allocatur.
, -139-
MS. SWEENEY: MAY WE MARK AS
COMMONWEALTH EXHIBIT C-7 A
COPY OF A LETTER DATED
NOVEMBER 6"™ OF 1990?
THE TIPSTAFF: C-7 SO MARKED.
(WHEREUPON C-7 IS GIVEN TO THE
WITNESS AND THE COURT.)
Q
Isn’t it true that what you suggested to the
Defendant was since you had been told John
Scott, criminal defense lawyer, had been
approached regarding filing a possible post-
conviction hearing and petition, this case was ripe
to do, that he should get in touch with John Scott
as soon as possible, so that he may initiate initial
proceedings on the defendant's behalf?
And isn’t is true you then noted, “I am truly sorry
we didn’t do better in this case. I did fight hard
-140-
for you, but sometimes all the effort comes to
nothing. You didn’t deserve to be given so much
time. I do hope —*
] did write that.
And you concluded:
“I do hope Mr. Scott can find something to help
you with. You know | will do anything I can to
help you within the bounds of ethics and the law.
If you have any questions, please do not hesitate
to call me”.
For all intents and purposes, Sir, didn’t you throw
your door open and say, I will help anybody
that’s trying to get George Trudel either a new
trial or the charges thrown out?
Within the bounds of ethics and the law, and I
wrote that in my letter.
At that point, two years after the trial, it still did
-141-
not occur to you that there was something amiss
in the defendant’s decision not to testify, did it?
No.
And then?
MR. ADAMS: WELL, I OBJECT TO
THE FORM OF THE QUESTION. IT
ASSUMES THAT THE DEFENDANT
MADE A DECISION. I DON’T THINK
THAT MR. NEWMAN HAS STATED
THAT IN ANY WAY.
THE COURT: WHY DON’T YOU
REPHRASE THE QUESTION.
It still, as you were looking for a way to help the
Defendant, did not occur to you that the decision
not to testify, have the Defendant not to testify,
was in any way an infringement upon his right,
-142-
did it, Mr. Newman?
It never occurred to me that that was an issue.
And you then did send a substantial amount of
your file to John Scott, and to the extent that it
would be possible, volunteer your services to help
him. Isn’t that true?
Well, again, I’m indicating that I’m going to be
cooperative with counsel, not obstructive.
MS. SWEENEY: YOUR HONOR, MAY
WE MARK AS COMMONWEALTH
EXHIBIT C-8, A LETTER FROM MR.
NEWMAN TO JOHN SCOTT, DATED
DECEMBER 5™ OF 1990?
THE TIPSTAFF: C-8 SO MARKED.
Even after sending all of these materials to Mr.
Scott, you did not hear anything about a
Complaint that the Defendant wished to testify at
-143-
his trial, but had been prevented from doing so,
did you?
I don’t think I heard anything from John Scott
about anything, quite frankly.
And is it fair to say that the first time you heard
that the Defendant was complaining that he
wished to testify at trial, but hadn’t done that,
hadn’t been able to do that because of being
denied the opportunity by you, was when you
read his affidavit in the PCRA Petition filed by
Mr. Adams?
That’s correct. To my recollection, | have no
recollection of any other complaints.
As you sit here today, isn’t it true that your
testimony is not that you dropped the ball in any
way, in terms of advising the Defendant of his
rights, but merely that you don’t know what you
-144-
said to him?
A That is absolutely correct.
MS. SWEENEY: I HAVE NOTHING
ELSE.
MR. ADAMS: JUST A FEW BRIEF
QUESTIONS.
REDIRECT EXAMINATION
BY MR. ADAMS:
A Mr. Newman, do you recall that when you
reviewed the Defendant’s testimony in Mr.
Barret’s trial, that the Defendant’s testimony was
exculpatory for himself?
I believe that’s true. Yes.
And isn’t it also true that his testimony in Barret’s
trial was consistent with the Defendant's
testimony at Barret’s preliminary hearing?
| can’t say for sure. | don’t know if there were
-145-
any more discrepancies. | can’t really answer that -
question.
Okay.
But I remember they were both exculpatory.
Whether or not they were thorough, certainly |
just can’t - - I just can’t answer that.
Isn’t it true that the statements that you may have
made in your closing argument to the jury with
regard to the question of the Defendant testifying
or not testifying did not necessarily reflect the
literal truth of who made that decision or how
that decision was made?
MS. SWEENEY: OBJECTION, YOUR
HONOR. THE STATEMENTS SPEAK
FOR THEMSELVES. FIRST OF ALL,
IT’S A LEADING QUESTION, AND
SECONDLY, IT’S CROSS
-146-
EXAMINATION.
THE COURT: SHE’S CORRECT.
WHY DON’T YOU REPHRASE IT?
MR. ADAMS: YES, YOUR HONOR.
THANK YOU, YOUR HONOR.
Do you remember today, when we’re sitting here,
whether or not the statements you made in the
closing argument were meant to represent the
literal truth concerning the issue of the Defendant
testifying or Defendant not testifying?
MS. SWEENEY: OBJECTION
THE COURT: WHAT’S THE
OBJECTION?
MS. SWEENEY: PARDON ME?
THE COURT: WHAT WOULD BE THE
OBJECTION?
MS. SWEENEY: THE WORDS SPEAK
-147-
FOR THEMSELVES. THE COUNSEL
SAID NOW, ALL THESE YEARS
LATER, I DON’T RECALL. I DON’T
RECALL. I DON’T RECALL. THAT'S
BEEN THE BASIS OF HIS
TESTIMONY
I’M NOT GOING TO BE ARGUING
TO YOU THAT THE WORDS HE
USED AT THE TIME HE USED THE,
AND THE PLAIN MEANING OF THE
WORDS BACK THEN SHOWS
SOMETHING FAR DIFFERENT FROM
WHAT DEFENSE COUNSEL WILL BE
ARGUING TO YOU ON BEHALF OF
THE DEFENDANT.
THE COURT: WHAT I’M GOING TO
BE DOING IS LET THE WITNESS
-148-
ANSWER, IF HE COULD, AND LET’S
SEE HOW FAR WE GO WITH THAT
QUESTION.
GO AHEAD. YOU WANT IT
REPEATED?
Well, I'll try to.
Do you recall whether or not your statements in
closing arguments, the statements we’re talking
about, were meant to reflect the literal truth at the
time?
I can’t really answer that. I don’t recall, because,
again, I don’t recall what the specific discussions
were. I can say that I don’t think that, you know,
the decision whether or not, whether a client
testifies is, um - -
MS. SWEENEY: OBJECTION, YOUR
HONOR, AND MOVE TO STRIKE.
-149-
IT’S NOT RESPONSIVE FROM THIS
POINT FORWARD.
THE COURT: YES, I’M AGREEING
TO THAT. YOU DID INDICATE
THAT YOU DON’T RECALL. AM!
CORRECT?
THE WITNESS: THAT’S CORRECT,
YOUR HONOR.
THE COURT: YES.
MR. ADAMS: ALL RIGHT.
Fither before the trial, during the trial, or after the
trial, did you ever have any conversations with
this Defendant’s grandmother, a lady by the name
of Sophie Martin?
MS. SWEENEY: OBJECTION.
THE COURT: WHAT’S THE
OBJECTION?
-150-
MS. SWEENEY: IT’S CERTAINLY
BEYOND THE SCOPE OF ANY
CROSS EXAMINATION.
THE COURT: IT IS BEYOND THE
SCOPE. IS THERE ANYTHING THAT
YOU — THE GRANDMOTHER?
CONVERSATIONS?
MR. ADAMS: WELL, I’M GOING TO
SPECIFY IN A MINUTE. FIRST OF
ALL, I WANT TO FIND OUT
WHETHER THERE WERE ANY
CONVERSATIONS.
THE COURT: LET’S FIND OUT
WHERE YOU’RE GOING WITH IT.
A Yes.
Q Did Mrs. Martin, the Defendant’s grandmother —
-151-
ae
MS. SWEENEY: OBJECTION FOR
ONE OTHER REASON. WE’RE NOW
TALKING ABOUT SOMEBODY
OTHER THAN THE DEFENDANT. IS
MRS. MARTIN IN THE
COURTROOM?
MR. ADAMS: NO, SHE’S NOT.
MS. SWEENEY: THANK YOU.
THE COURT: IS MRS. MARTIN THE
GRANDMOTHER?
THE DEFENDANT: YES
THE COURT: OKAY.
MR. ADAMS: YES.
Q Did Mrs. Mein ever talk to you about George
testifying—
MS. SWEENEY: OBJECTION.
Q — One way or the other?
-152-
MS. SWEENEY: OBJECTION.
THE COURT: I’LL ALLOW A “YES”
OR “NO.”
I don’t recall her addressing that with me.
Whether she did not, I cannot say.
Have you ever in your practice persuaded a client
who initially said he wanted to testify in his own
defense, persuaded him not to testify?
MS. SWEENEY: OBJECTION.
MR. ADAMS: WELL, YOUR HONOR,
THAT WAS BROUGHT OUT A
GREAT DEAL.
THE COURT: OKAY. LET’S SEE
WHERE WE GO WITH IT.
If you can allow me a minute to think, I’m going
to try to think if 1 can ever recall doing that.
(WHEREUPON, THERE IS A PAUSE IN THE
PROCEEDINGS.)
A
I can’t recall ever persuading someone who
asserted as a fact that they wanted to testify,
affirmatively stating as a fact that they wanted to
testify vigorously, trying to convince them not to.
If I were going to try to do that, it would have
been in my office or up at the prison, but if it
were at trial at that point in time, um, if it weren’t
a fairly done deal, if it weren’t fairly well decided
that he was or wasn’t, I wouldn’t do that.
And in this case, I think only, given the opening
statement I made, I think it was still up in the air.
It wasn’t a definite thing, but to answer your
question specifically, if someone asserted as a fact
that they wanted to testify, and they intended to
testify, at that point, no. I wouldn’t prevent
-154-
them, because I know what the obvious result
would be.
You testified on cross examination by Miss
Sweeny that in many cases the actual way that the
advice would be given would be simply for you to
turn to the defendant at counsel table and say, “I
think you shouldn’t testify,” or “I’m not going to
put you on the stand,” or words to that effect?
A lot of possibilities, but, essentially, that, and
usually that’s the very final last word on the issue.
It’s like this is our last chance, and often it’s that
quick. It’s just a whisper, a quick turn to the
client saying, “no sense in you taking the stand;
do you agree?” And, hopefully, the client saying,
“yeah,” or acquiescing, something to that effect,
and I’m only suggesting a variety of words.
There might be a whole variety of words that |
-155-
might use. It might be, “ don’t think you need to
take the stand.” “You shouldn’t take the stand,”
you know. “You don't need to take the stand.” I
mean, I can’t tell you. Again, from case to case,
if a tentative decision has been made, there will be
a last moment when I’ll turn to the guy and say,
“You’re not going to take the stand,” and it may
be in the form of an interrogatory. It may be a
little more emphatic than that. Again, it depends
on the client or the case.
There are clients, for example, who say to you,
“you decide, Mr. Newman.” I mean, I have that
a lot of times. “What am I paying you money
for? You make the decision.”
MR. ADAMS: NO FURTHER ee
QUESTIONS.
-156-
RECROSS EXAMINATION BY MS.
SWEENEY:
Q But your testimony is you always turn to the
defendant before you rest your tase and ask the
defendant at least one last time if he wishes to
testify. Isn’t that true?
MR. ADAMS: OBJECTION
THE COURT: WHAT’ YOUR
OBJECTION?
MR. ADAMS: BUT THAT’S NOT
WHAT HE TESTIFIED.
A Sometimes it will be in the form of an
interrogatory. Sometimes it will be in the form of
a statement. There’s a variety of ways that it’s
done, and again, it depends on the client how |
deliver it.
My question is, that what you’re telling us is that
-157-
always you consult with the defendant in some
manner, be it interrogatory or statement, to
obtain the defendant’s wish before standing up
and announcing to the court that the evidence is
complete without the defendant testifying?
I can’t say “his wish”. If you ask me do | always
make a statement to the defendant, be it in an
interrogatory or declaratory form about
testifying, yes, I do.
Do I ascertain what his real desire is? You know,
“wish”; when you use that phrase, that’s
impossible for me to answer. Whether or not
there’s even a response from the defendant, other
than — it could be anything from an affirmative to
a grunt. I mean, it depends on the client, again,
what kind of response I’m getting.
But you get a response from the defendant before
-158-
you rest the case; isn’t that true?
A Yes. Yes, that is accurate. That’s true.
Q Because the defendant’s decision, as you well
know, is what’s controlling in the case. Isn’t that
true?
MR. ADAMS: I OBJECT TO THAT
QUESTION. I THINK IT’S
ARGUMENTATIVE.
THE COURT: I THINK WE’VE WENT
OVER THIS ENOUGH.
MS. SWEENEY: I HAVE NOTHING
ELSE.
THE COURT: SO, COULD WE
EXCUSE MR. NEWMAN?
MR. ADAMS: YES
MS. SWEENEY: I’M RELUCTANT
TO EXCUSE MR. NEWMAN, SINCE I
-159-
DON’T REALLY KNOW WHAT THE
DEFENDANT WILL SAY THAT WILL
INVOLVE MR. NEWMAN OR
POSSIBLY A REBUTTAL BY MR.
NEWMAN.
THE COURT: WHY DON’T - I
DON’T WANT HIM
UNNECESSARILY JUST STAYING
AROUND HERE. HOW LONG WILL
YOU BE ON YOUR DIRECT, MR.
ADAMS, WITH YOUR WITNESS?
MR. ADAMS: HONESTLY, I THINK
IT WILL TAKE APPROXIMATELY
AN HOUR, YOUR HONOR, BECAUSE
HE ALSO HAS TO TESTIFY. HE’S
NEVER TESTIFIED IN HIS OWN
DEFENSE. SO, HE HAS TO TESTIFY.
-160-
THE COURT: I REALLY DON’T
WANT MR. NEWMAN TO WAIT
AROUND FOR AN HOUR JUST IN
CASE, BUT I’M AWARE OF WHAT
YOUR SITUATION IS. MAYBE WE
CAN GET SOME KIND OF MIDDLE
GROUND THAT IN THE EVENT YOU
NEED -
THE WITNESS: I'LL RETURN
TOMORROW, IF YOU WISH
TOMORROW. I’VE GOT THREE
MATTERS LISTED, BUT I DON’T
THINK ANY OF THEM WILL
ACTUALLY GO TO TRIAL. IF YOU
WISH ME TO COME BACK AT SOME
TIME TOMORROW.
THE COURT: I DON’T KNOW
-161-
WHAT EACH OF YOUR SITUATIONS
ARE TOMORROW.
THE COURT: I DON’T KNOW WHAT
EACH OF YOUR SITUATIONS ARE
TOMORROW.
MS. SWEENEY: I CAN MAKE
MYSELF AVAILABLE.
MR. ADAMS: I HAVE AN
EXTRADITION HEARING IN
DELAWARE COUNTY.
THE COURT: I HAVE A TRIAL,
TOO.
MR. ADAMS: I WOULD CERTAINLY
WANT TO DO THIS.
THE COURT: WE’RE JUST
ASSUMING THAT IT’S NECESSARY,
BUT I THINK MAYBE YOUR CROSS
-162-
G E O QUESTION G E_ TQUESTIONU
DE L:
WHEREUPON THE WITNESS IS HEREBY
SWORN AND TESTIFIES UNDER OATH AS
FOLLOWS:
EXAMINATION IS VERY
THOROUGH, WE TURNED OVER
EVERY UNCOVERED STONE.
MS. SWEENEY: I HAVE TO KEEP
THAT OPTION, THOUGH.
THE COURT: YES. ALL RIGHT.
YOU WANT TO CALL YOUR
WITNESS?
MR. ADAMS: GEORGE TRUDEL.
THE WITNESS: GEORGE TRUDEL.
-163-
DIRECT EXAMINATION BY MR.
ADAMS:
Sf + -
MR. ADAMS: MAY I PROCEED,
YOUR HONOR?
THE COURT: YES.
Mr. Trudel, how old are you, sir?
Thirty years old.
And how far did you go in school?
Tenth grade.
And how old were you when you stood trial in
the jury trial in this case, in December 1988?
It was roughly nine years ago. So, were you 20?
Twenty.
MS. SWEENEY: I OBJECT TO THAT.
MY RECORDS INDICATE HE WAS
roo
Well, what is your birthday?
-164-
A
Q
5/26/66.
5/26/66?
MS. SWEENEY: I THINK WE CAN
AGREE THE TRIAL WAS -
THE COURT: WHATEVER IS IN
THE RECORD.
Mr. Trudel, where did you live in November of
1996?
4242 Griscom Street.
In the City of Philadelphia?
Yes.
MS. SWEENEY: JUDGE, I OBJECT
TO THIS BECAUSE I SUGGEST
THAT IT’S FAR AFIELD OF THE
PURPOSE THAT WE’RE HERE FOR,
WHICH IS A LIMITED ONE.
THE COURT: WHY DON’T WE GET
-165-
TO THE BASES, THE PURPOSE OF
THE APPEAL AND REMAND?
MR. ADAMS: I WOULD, BUT I
WOULD SAY THIS FOR THE
RECORD. I DO THINK THAT THE
DEFENSE AND DEFENDANT IN THIS
KIND OF A SITUATION DOES HAVE
THE RIGHT AND SHOULD HAVE
THE RIGHT TO ACTUALLY GIVE
HIS TESTIMONY, BUT I WILL SKIP™
AHEAD TO AFTER HE WAS
ARRESTED.
THE COURT: INSOFAR AS THE
SUPERIOR COURT ACTUALLY
REMANDED THIS CASE FOR A
SPECIFIC REASON, WHY DON’T WE
RELEGATE IT TO THAT SPECIFIC
-166-
REASON, SO WE CAN SATISFY THE
SUPERIOR COURT’S REQUEST.
MR. ADAMS: OKAY. LET’S DO
THAT. I WILL DO THAT.
George, approximately when were you arrested
and charged in connection with this case?
It wasn’t — it wasn’t too long after Bobby
Barret’s trial.
Okay. And if! told you that Mr. Barret’s trial
took place in the summer of 1987, would that be
I’d say almost a year.
In any case, after you were arrested and charged
in this case with the death of Mr. Baroik, did you
have counsel appointed for you?
Before?
Did you have counsel appointed to represent you
-167-
i 2+ 2 + © #
> i 8 £#
after you were arrested in this?
Yes.
And was that Mr. Newman?
Yes.
The man that just testified here in court here?
Yes, it was.
Did you have an opportunity to meet with Mr.
Newman?
Yes.
Approximately, where and when did you first
meet with him?
I forget where his office was because my
grandmother drove me at the time.
Was it at the Benjamin Franklin Hotel?
I guess.
But you went to his office?
Yes.
-168-
Did he interview you at that time, the first time
you were together?
Briefly.
Now, did you see him then, again, after that time
before the trial started?
Briefly
Is it fair to say that you met with Mr. Newman on
a number of occasions? Although they may have
been brief, you did meet with him a number of
different times?
Yes, I did.
Did you ever tell him what happened on the night
of the crime, November 14", 1996?
Yes, I did.
And briefly, what did you tell Mr. Newman that
you did with respect to the victim that night?
-169-
MS. SWEENEY: JUDGE, I OBJECT.
THE COURT: IT IS GOING FAR
AFIELD. ’LL ALLOW IT TOA
CERTAIN EXTENT, BUT THAT
WASN’T THE WHOLE PURPOSE,
BUT GO AHEAD.
Briefly.
THE COURT: KEEP THAT AREA
BRIEF.
Yes
that I witnessed the fight between Casmere and
Baroik, (PHN) and Baroik and Bobby Barret?
And did you tell Mr. Newman what you did other
than witnessing it?
Yes.
What was that?
How did Bobby get away from him.
-170-
Now, do you recall ever talking with Mr.
Newman about the subject of your testifying at
your own trial?
Yes, I did.
Can you tell the Judge when, approximately,
when and where that conversation may have
taken place?
I talked to Mr. Newman about it at his office on
the phone one time when he called, and I talked
to him about it in the Courtroom.
And, if you can, to the best of your lilt
what did you say to him about it? What did you
say to Mr. Newman? |
About testifying?
Yes.
That I wished to testify on defense. I told him, I
testified at Bobby’s trial.
-171-
What did he say to you?
He told me, I'd more than likely would testify at
my own trial.
Did you testify at the trial?
No, I did not.
What happened during the trial with respect to
that question, whether or not you were going to
testify?
Well, they put Bobby Barret on the stand. Um, |
sat at the table and listened to everybody that the
DA’s Office put on. They called Bobby Barret
for ms. | was waiting for Newman to call my
grandmother and to call me.
As soon as Bobby Barret was done testifying, at
that time, Mr. Newman told me that, you know,
he’s not going to put my grandmother — he’s not
going to put me on. He toid me he would cover
-172-
> 2)
(2)
it in his closing. He told me the jury will not
agree with Colleen DeMarco, and that was it.
And where did this conversation take place that
you just related?
At his closing, toward the end of the trial.
In the courtroom?
Yes, sir.
Or in some other room?
Courtroom.
And where were you sitting? Where were you
sitting?
I was sitting next to him at the table.
Was this conversation during a recess of the trial,
or was it during the time when the trial was
actually - -
The trial was actually in progress.
What, if anything, did you say to him when he
-173-
OO © HOH FF AH PP
told you that he was not going to put you on the
witness stand?
I didn’t say anything. I thought that was it.
Did you know, then, in December of 1988, that it
was your right to testify, and only you could
make that decision?
No, sir.
Did Mr. Newman know that you had testified at
Mr. Barret’s trial?
Yes, he did.
How do you know he knew that?
I had told him. He had the paperwork.
He had the transcript of the testimony?
Yes.
Did you and he ever go over that testimony
before your trial started? Did you ever review
your testimony at Mr. Barret’s trial with Mr.
-174-
Newman?
In telling him what happened that night, the
testimony, I did.
Before your trial started or even during your trial,
did Mr. Newman ever tell you what questions he
might ask you if he put you on the witness stand?
Not really, that I remember.
But it’s your testimony that when you trial
started, when it commenced, you thought you
were going to testify?
Yes, I did, and I thought my grandmother was
going to testify, also.
MS. SWEENEY: OBJECTION TO
ANY QUESTIONS ABOUT THE
GRANDMOTHER? THAT’S NOT THE
ISSUE WE ARE HERE FOR.
OO .& fH PP
MR. ADAMS: YES. THAT IS NOT
THE ISSUE, BUT THAT IS TRUE.
When Mr. Newman told you in the court that
they weren’t going to put you on the stand, what
happened after that, if you remember?
He just started closing. His closing.
Did you object or raise your hand or say anything
to the Judge at that time?
No, I didn’t.
Did you know that you could have objected?
No.
Did you ever meet with or talk with a lawyer by
the name of John Scott.
No, I didn’t.
Do you know who he is?
He was supposed to be my lawyer. He was paid
to be my lawyer.
-176-
Q But did you ever have any contact with him of
any kind?
A Yes. I eer a receipt telling me that he’s been
retained. That was it.
MR. ADAMS: EXCUSE ME ONE
MINUTE, YOUR HONOR. I MAY BE
FINISHED.
I] HAVE NO FURTHER QUESTIONS,
YOUR HONOR.
THE COURT: OKAY, CROSS.
CROSS EXAMINATION
BY MS. SWEENEY:
Q Mr. Trudel?
A Good Afternoon.
Q When, at 22 years old, you went to trial in this
case being charged with killing somebody, you
were a veteran of the criminal court system here
-177-
i ee +
in Philadelphia. Isn’t that true?
I wouldn’t say veteran.
Well, you had four previous nonjury trials before
the trial of this case. Isn’t that true?
Okay. -
That’s a “Yes”?
Yes. ;
In fact, they started in 1984, when you had a
nonjury trial for simple assault, resisting arrest.
I’m sorry, simple assault, recklessly endangering,
criminal mischief and possession of an instrument
of crime; weapon, before Judge Krase.
At that point in November of ‘84, you were
represented by somebody from the Public
Defender’s Office. Can you remember that arrest
and going to trial and being found guilty and
getting probation?
-178-
Ss + & &
ao +, ff + © >
No, not particularly.
That’s when you were 18?
(The witness shakes his head No.)
then you had a case of retail theft when you were
arrested in 1987, and in August of 1987, before
your December of 1988 trial, you went to trial
before Judge Gilbert for retail theft, and you were
represented by somebody named Theodore
Weiss. Can you remember that?
What was the case?
Retail theft and conspiracies?
No, I don’t remember.
You don’t remember that one?
No.
How about the burglary case where Mr. Newman
represented you, where you went to trial in July
of 1988, just five months before this trial? Do
-179-
you remember that case?
I think that was the case where I was asleep in a
Car.
And that was another waiver trial. You didn’t
plead guilty. You had an actual trial, and you
went to Court, and you were found not guilty.
Correct?
In that case, I think, um, the p0erson that they
had put on the stand had said that I didn’t have
anything to do with it. Brian —I forget his —
Brian Brown.
And you were found not guilty at the trial, is my
question. Isn’t that right?
Yes, Ma’am.
then you had another case, which was a drug
case, in April of 1988. You went to trial, another
waiver trial, and you were represented by Harvey
-180-
Anderson. Do you remember that you were
found guilty and got a year’s probation before
Judge Conroy? Do you remember going to court
for a drug case?
No.
It’s your testimony, Sir, as you sit here today,
that after four trials, four trials, not one attorney
ever had said to you the decision whether to
testify is yours?
No.
No one?
I was always told what to do.
No one ever told you specifically that you have
the right to decide whether to testify?
Specifically, No.
How about when Judge Savitt instructed
members of the jury at the start of the case here
-181-
on December 6" of 1988 as follows: Page 14.
You were present. By the way, you were in the
Courtroom; you listened to the Judge explain to
the members of the jury the ground rules of his
introductory remarks before the testimony
started, weren’t you?
I guess I was
You were paying attention, closely, because you
knew you could go to jail for the rest of your life
if you were convicted, didn’t you?
I guess I was.
Well, a guess is not an answer. Do you
remember sitting there and listening to Judge
Savitt tell the members of the jurors, “You’ve
been selected now. Now, I’ll tell you what to
expect,” and he gave a little bit - -
Ma’am, can I say something?
-182-
“This is the Commonwealth. This is the
Defense.”
It’s years ago. I had never been in any kind of
trouble like that, all right? I was basically legally
illiterate. He was saying things, you know, um,
legal terms and whatnot. When I was sitting up
there, a lot was going on for me.
I don’t actually remember what was being said,
nor did I understand at the time what was being
said. To this day, | still don’t understand a lot of
what’s being said legally.
Did you turn to your lawyer, Mr. Newman,
during any of the trial and say, “I don’t
understand”?
Some things.
Did you every say to him, “I don’t understand the
Judge’s comment about testifying”?
-183-
A No. He did a lot of writing. I didn’t bother him.
I let him do his job.
Q Page 14. Do you remember hearing the Judge
say:
“Tell me if you don’t understand this.
After the Commonwealth’s case is over, the
Defendant’s lawyer may present evidence for the
Defendant. The Defendant has no obligation to
offer evidence or to testify himself,”.
Is there anything about that that you don’t
understand?
A I don’t remember.
Q Now, as you sit here today, is there anything you
don’t understand, Sir?
A About that now?
Q Right.
A No.
-184-
Okay. How about these comments:
“Under the law, every Defendant is
presumed innocent and has the right to remain
silent. The burden is on the Commonwealth to
prove him guilty beyond a reasonable doubt”.
Did you understand that, Sir?
Yes, I understand it now.
How about these words, “Of course, if the
Defendant does choose to testify - - Now, it
doesn’t say Defense Counsel. It says Defendant.
“If the Defendant does choose to testify,
or offer evidence in his own behalf, then the
Assistant District Attorney may cross examine
those witnesses”.
Is there anything about that that you don’t
understand, Sir?
No.
a a
Now, do you remember hearing Judge Savitt
explain that to the jury before your trial started?
(Whereupon there is no response.)
“No”?
No, Ma’am.
Did you hear your lawyer open to the members of
the jury and say, “We haven’t decided yet if
George is going to testify”?
I don’t remember.
Did you hear your lawyer tell the members of the
jury, “George elected not to testify”?
No.
You didn’t hear him say that?
No.
Sir, you were sitting in the courtroom for closing
arguments, weren’t you?
I don’t remember that.
-186-
Did you listen to your lawyer when he, in
essence, pled for your life? He was trying to get
you released from jail and back to the streets.
Didn’t you listen to him when he talked to the
jury?
I wasn’t really here.
That’s a “No,” you didn’t listen?
No.
When the case was concluded and you were
convicted of second degree murder, you were
sentenced on the spot, weren’t you, Mr. Trudel?
Yes, | was.
And the Judge said, “I don’t even have any
discretion here. The law says second degree is
life,” they put the cuffs on and out you went,
right?
Yeah, I was in shock during the whole trial.
-187-
True. It’s like the whole thing was like a dream
to me. It didn’t even feel like I was in the
courtroom.
~ Sir, when the Judge said, “You’re going to jail for
the rest of your life” - -
I had no emotion.
That’s not my question. You can volunteer
whatever you want to volunteer. My question is,
you must have been pretty darn mad if what you
wanted to do was get on that witness stand and
testify, and your lawyer wouldn’t let you.
Weren’t you mad?
I didn’t understand what was going on, really.
You understood you were going to jail for the
rest of your life, didn’t you?
It was explained to me that, that life wasn’t life.
Who explained that, sir?
-188-
ae -
Mr. Newman.
When did he do that?
He was sitting at the table. Um, I couldn’t stand
up any more after they polled the jury. I had to
sit down. Um, he was just - - I just remember
him saying things into my ear. “Don’t worry, um,
life isn’t life. There’s always commutation.”
He’s always saying things to me.
So, you didn’t speak up and say anything to the
Judge because you didn’t think that life was life?
I didn’t know I could.
You could talk, right?
Yeah, I could talk.
There was nothing preventing you from talking
that day, was there?
No, there wasn’t. Nothing preventing other than
not knowing that I could.
-189-
Sir, if you thought you were wrongfully
convicted and denied of an opportunity to testify
and tell the jury, when the Judge said, “Is there
anything else?” Did anything prevent you from
standing up and saying, “Yes, there is something
else I wanted to talk about”?
I don’t remember anybody asking me anything.
Did you listen to the charge of the Judge when he
told the members of the jury how to evaluate the
evidence in your case?
Not that I remember.
This was the law that the jury was going to use to
decide whether you were innocent or guilty.
Didn’t you pay attention?
I was up all night. No
That’s a “No,” you didn’t pay attention?
No.
-190-
a f- © PF. He +
So, the Judge could have said - -
I mean, I made - -
He could have said Green Cheese, you wouldn’t
have know?
I paid attention to the best of my ability at that
time.
Sir, when the evidence was concluded and the
jury was charged, you were still on bail at that
point, weren’t you?
I guess. Yes.
Not “I guess”. Weren’t you on bail?
I said Yes.
Pardon me?
Yes.
And when you were on bail, your lawyer, Mr.
Newman, asked the Judge for permission to
release you to his custody. He said he would
-191-
take responsibility for you. Isn’t that - -
I don’t remember
Do you remember the Judge saying, “Okay, Mr.
Newman,” at about Page 563 in the record that
day?
“Okay, Mr. Newman, if you tell us that the
Defendant will stay with you, we won’t make the
Sheriffs lock him up now that the jury is out.”
Do you remember that?
No Ma’am.
Do you remember the court saying the Defendant
is required to be present in this room until we
recess and back by 9:30 tomorrow morning?
And this is age 563, and Mr. Newman says,
“He’ll be there.”
And you say, “Yes, Your Honor.” Do you
remember speaking to the Judge then?
-192-
I remember waiting while the jury was
sequestered, bu t I don’t recall what was said.
You don’t remember the Judge speaking to you,
and you had an opportunity to state to him if you
had a legitimate complaint?
I’m just saying I don’t remember what he was
saying.
Do you remember at all listening to the Judge’s
charge when you came - - Now, you knew as you
sat there during the Judge’s charge, it’s your
testimony that you had wanted to testify and had
been denied the opportunity to do that, right?
I was told not to.
That’s not my point. As you sit here, what
you’ re telling us is you affirmatively wanted to
testify, and Mr. Newman prevented you from
doing that. Isn’t that what you’re telling us?
-193-
You know, I listened to my lawyer. I listened to
what the lawyer told me.
The lawyer told you it was not his
recommendation for you to testify. Isn’t that
correct?
MR. ADAMS: I OBJECT TO THAT
QUESTION.
THE COURT: WHY DON’T YOU
REPHRASE THAT?
The lawyer told you that he did not think it was a
good idea for you to testify. Isn’t that true?
He just said, “I’m not going to put you on.”
Well, then, I go back to my last question which
was, as you sat there waiting for the jury to
decide whether you’re going to spend the rest of
your life in jail, you knew you had wanted to
testify and the lawyer wouldn’t let you. Isn’t that
-194-
Oo f+ fH PP
true?
Yes.
Correct?
I didn’t get on the stand.
No, that’ s not the point. The lawyer wouldn’t
let you testify. That’s what you’re asking us all
to believe. True?
True.
Didn’t you listen to the Judge talking about your
right to testify when he explained the law to the
jury and told the jury at page 521:
“In this case defendant did not take the
stand to testify.”
Didn’t your ears perk up then?
I was never told I had the right to testify.
I’m going to continue on that regard, Sir. So, my
question was, when you heard the Judge telling
-195-
——
the members of the jury in this case the defendant
did not take the stand to testify, didn’t you sit up
a little brighter in the chair and say, “hey, wait a
minute. I wanted to testify”?
Didn’t you pay closer attention to the
Judge’s charge then?
No Ma’am.
Not at all?
(The witness shakes his head No.)
a 2 i *
Did you hear the Judges next comment: “It is
entirely up to the Defendant, not defense counsel,
defendant, in each criminal trial whether or not to
testify.”?
Did you hear the Judge tell that to the members
of the jury before you were convicted and
sentenced to life in prison?
A I don’t remember, Ma’am, No.
-196-
4 .* A PP
When did you realize, hey, wait a minute, it was
my right to decide that I should have testified?
It wasn’t until later on, until somebody started
advising me, until I started looking into legal
work, and to learn about it. I never knew I had
the right to testify.
Well, that’s not my question, Sir. When did you
realize —
I don’t remember the date.
— that it was your right?
I don’t remember the date.
It wasn’t during any of the years that George
Newman represented you on appeal for this case,
was it?
During my appeal with George Newman, I had
just been transferred to Camp Hill and was caught
in a riot. I lost all my legal work. I had no
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communication or contact with my family,
whatsoever.
MS. SWEENEY: MAY THIS
WITNESS BE SHOWN WHAT WE’VE
MARKED AS COMMONWEALTH
EXHIBITS C-2 AND THEN C-4,
PLEASE? C-2 IS THE
HANDWRITTEN LETTER AND C-4 IS
THE FOUR SETS OF PLEADINGS.
TWO SETS OF PLEADINGS.
Q Mr. Trudel, you wrote C-2, didn’t you? It’s a
xerox copy, but isn’t that your handwriting?
Yes.
You wrote to Mr. Newman?
Yes, but I don’t remember when I wrote it.
kag 2 H Pe
Well, would you take a look at what we marked
C-3, a letter dated February 8, ‘89, and see if you
-198-
remember receiving that back from Mr. Newman
addressing whether or not you could get
commuted and how much time you’d have to do?
All right.
Would you tel us, please, when Mr. Newman,
according to you right now, turned to you and
said, Don’t worry about Life. You don’t have to
do life. It will be all right?
Why didn’t you write and say, how many years
exactly do I have to be sentenced to, and when
am I eligible for parole after the trial?
He said that to me at the end of the trial.
At the end of the trial. It’s your testimony he told
you it isn’t life, don’t worry about it or words to
that effect?
Not word-for-word as you’re stating, but it was
something to that effect. I mean, you know, I
-199-
‘Oo © #4 PP
heard people talking. He was talking in my ear. |
wasn’t hearing what he was saying, but it was to
that effect. Yes.
Were you a little surprised when you got the
letter dated February 8" of 1989 that says, “No
specific minimum on a life sentence. You're not
eligible for parole until the Governor commutes”?
Yes, I see.
Well, you got the letter, didn’t you?
Yes.
It was addressed to you. When you got the
letter, were you surprised, “Wait a minute now. |
may be in here for awhile”?
Even up to this day, people in Pennsylvania don’t
even know life is life.
That’s not my question, and I would appreciate
you trying to answer them as best as you can.
-200-
Weren’t you surprised, according to you, when
Mr. Newman said, “Hey, you’re going to be
there.
We don’t know who’s going to commute what.
Life is Life, according to you, in Pennsylvania.”
and then you tried to look for issues to try to get
you out of jail or try to get you a new trial.
My life was taken away from me for a crime I
never committed.
Is that a “yes” or “No”?
Yes
You had access to either a law library, and a
friend of yours had access to a law library in the
prison, because you came up with additional
matters to be complained of on appeal; A and B.
Do you remember that? Do you have them in
front of you?
-201-
A Yeah. I didn’t know anything about the law, and
I ran through a series of jailhouse lawyers.
Q Well, the series of jailhouse lawyers, either you
typed it or they did, and came up with three
papers talking all about the weaknesses in the
Commonwealth’s case and how detectives took
away your Fifth and Sixth Amendment rights, and
in Ryan Wynville and various other cases that are
cited here, true?
A Yes.
Q And they did this based upon what you told them
had happened in your trial, didn’t they?
A Things that I never go to say.
Q Sir, you told your friends with access to law
aie what happened in your trial, and that’s
what they used to prepare 4-A. Isn’t that true?
A Not just what happened in my trial, what
-202-
happened before the trial.
And that’s also what they used for this long six
page, seven page, whatever it is, pleading in the
case of Commonwealth Vs. Trudel. In 4-B
appears the most tragic and realistic example of
precisely what miscarriage of justice entails.
Correct? That was prepared with your assistance
by your friends?
No, not with my assistance. Just by me telling
him what -
Well, you helped him, didn’t you?
I didn’t put it together.
You told him what happened, and he put together
these papers?
That was it, Yes.
You never told him, “and I wanted to testify, and
my lawyer wouldn’t let me,” did you?
-203-
OO } ff
I didn’t know that was an issue.
Sir, didn’t you know you were frustrated?
(No response. )
Whether it is or isn’t, didn’t you know as a
person you had wanted to testify, and he
wouldn’t let you?
Excuse me. Excuse me.
MR. ADAMS: GEORGE, LET MISS
SWEENY FINISH HER QUESTION
BEFORE YOU TRY TO ANSWER.
THAT’S THE WAY WE DO IT. ONLY
ONE PERSON.
Whether I was frustrated or not, | still didn’t
know I had the right to testify.
Did you say to anybody trying to help you, “I
wanted to testify,” to give them a chance to tell
you what the law was? -
-204-
Anybody?
Anybody through at least 1990, two years after
your conviction, two years after your conviction?
I don’t remember.
Weren’t you trying to be as helpful as possible to
your friends in the hope that this tremendous
miscarriage of justice you suffered could be
remedied?
First, excuse me. Um, they weren’t my friends.
They helped me with this legal work. They were
just, um, a guy that was working in the law
library, and I had just fallen in the institution, and
as I was getting help from these guys, I had other
people telling me not to trust the jailhouse
lawyers and whatnot.
Well, you trusted him enough with things about
Colleen DeMarco and your Fifth and Sixth
-205-
Amendment Rights being infringed by police,
_ right?
I didn’t know about it.
But you didn’t trust him enough to tell him you
really wanted to testify, and your lawyer wouldn’t
let you?
It’s not like they went into a lot of detail.
I repeat my question. When did you learn the law
says it’s your right to decide whether to testify?
I’m not exactly sure when I learned.
Well, you learned it at some point before Mr.
Adams filed an affidavit in which you said I
wanted to; my lawyer wouldn’t let me. Right?
Some time, but I don’t know exactly when.
Sir, you’re seeking relief in this case on the single
issue now of whether you testified or not and
whose decision it was.
-206-
> Lf FF 2 +
Are you telling us you can’t remember when
lightening struck, and you realized it’s your right
to decide?
Whether it was discussing it with an inmate or
lawyer, I’m not sure at what point.
Was it while George Newman was representing
you?
No.
Your recollection is better than Mr. Newman’s
that you discussed your testifying or not with him
three times; at his office, on the phone and in
court. Correct? |
It may have been more than three times.
So, at least three times, Correct?
Correct.
At his office being before trial started?
I’ve seen him in his office a few times.
-207-
I mean, in terms of this discussion and whether
you wanted to testify or not, was that before trial
started?
Yes, Ma’am.
What about the phone conversation? You
remember, was that before trial or during trial?
That was before trial.
And as of that time, was it your understanding, as
Mr. Newman said to the members of the jury,
“we haven’t decided yet,” as to whether you were
going to testify?
Excuse me?
Isn’t it true that as of the start of the case, as Mr.
Newman said to the jury, that you and he hadn’t
decided whether you were going to testify or not,
true?
True.
~ .208-
You were going to wait and see how Bobby
Barret did in the cross examination of Colleen
DiMarco?
I wasn’t going to wait. I thought I was going to
testify, but Mr. Newman was speaking for me.
Well, did you hear Mr. Newman say to the
members of the jury, in his opening say, “We
haven’t decided”?
No I don’t recall that.
So, you didn’t hear that. What did you discuss at
this first meeting in his office before the trial
about you testifying?
I just - - he hadn’t talked to me about what had
happened that night. I had told him what
happened that night. I had told him what
happened that night. I had told him that I
testified at Bobby’s trial. He came up with, I
-209-
more than likely will be testifying at my own trial.
Did he go over with you what you would say,
how you would say it, to give you practice?
I don’t remember if that’s what he went over, but
I remember he was asking me questions about the
night, and I was just telling him things that
happened and whatnot.
How about did you discuss it with him again after
Bobby Barret testified?
I don’t remember.
Bobby Barret testified and said in your case,
taking the heat: I did it. I didn’t even see George
Trudel out there that night. I just heard a voice I
recognized as his.
Do you remember him saying that he came into
Court to get you help?
I don’t remember him saying exactly that.
-210-
MR. ADAMS: BUT WE BELIEVE IT
IS IN THE RECORD. I CONCEDE
THAT IT IS IN THE RECORD.
If your testimony, according to your affidavit, is
that you met Bobby Barret outside after the fight
with the victim and walked up together to the
apartment, would you agree that that’s not what
Bobby Barret said?
I didn’t meet Bobby Barret outside afier the fight.
I was standing in front of the apartment. Bobby
Barret was walking back down the street. As he
was walking back down the street, I turned to my
grandmother and said, everything is fine. She
went in the house. I went upstairs. He came
back and came upstairs to the apartment after me.
So, it’s your testimony today that what really
happened is you went up first, and then Bobby
-211-
Barret came upstairs?
Not actually after me. He was further up the
street.
Well, you signed an affidavit and gave it to your
lawyer as part of the pleadings in this case, didn’t
you, Sir, to try and explain why you suffered such
a miscarriage of justice, dated June 17", 1992.
Do you remember that?
No.
No? Do you remember at Paragraph 31/32,
“Barret didn’t chase Cos” - - That’s the victim,
Your Honor, “ - - but instead walked slowly
down Griscom Street to where I was standing in
front of 4435. Barret and I went back into
Beatty’s apartment.”
Did you tell your own lawyer that you and Barret
walked up to the apartment together?
-212-
I didn’t, um, I don’t know if I specifically said
“together”. I know I walked up the steps,
because I was on the phone when Bobby was
coming up the steps.
Well, Sir, did you sign an affidavit that says, “He
walked up to where I was standing in front of
4436. Barret and I went back into Beatty’s
apartment”?
Did you sign an affidavit that says that?
Which year?
Maybe it changes every year. 1992. June 17" of
1992.
MS. SWEENEY: CAN WE AGREE
THAT THAT’S PARAGRAPH 32,
COUNSEL? MAY I SHOW IT TO
HIM?
-213-
Q But that’s not the way you remember it now?
(Defense Counsel gives his copy to the
Witness. ).
A Okay. Well, I mean, I’m sure if 1 was up there
ahead of time, he wasn’t far behind. It wasn’t - -
it wasn’t that big of a difference. It wasn’t that
important, really.
Q Time will tell.
Did Mr. Newman turn to you, before standing up
and announcing that the evidence was closed, and
saying words to the effect of okay, this is it; you
want to testify or I don’t think you should testify?
He said, “I’m not going to put you on.
And what did you say?
I didn’t say anything.
Did you say, “Okay”?
> OH + AND PP
No.
-214-
RT PO Pee orm ee
> HOH - #A
Oo + AD P
Did you say, “I want to testify”?
I didn’t say anything.
You said nothing? Did you nod your head?
No. No, I just let him do his job. He said, I’m
not going to put you on. I had asked him was he
going to put my grandmother on. He said, Look,
I told you don’t worry about it. Ill cover it in my
closing. He said, the jury will not believe Colleen
DiMarco.
How many times did you tell Mr. Newman,
according to you, that you definitely wanted to
testify in this case?
Numerous times.
Numerous? Four? Five? Six?
I couldn’t give you an exact number.
Did he try to talk you out of testifying by
discussing the strengths or weaknesses, or did it
-215-
come right down to him saying, “I’m not putting
you on”?
He just said he didn’t think it was a good idea to
put me on, and that the jury - -
And then your said, “Okay”?
and I asked him about my grandmother after that,
and he told me, I’m not going to put your
grandmother on.
When he said, the jury is not going to believe
Colleen DiMarco; I don’t think it’s a good idea,
did you say, “Okay”? Did you nod your head?
I didn’t answer. That was like 11 years ago. All
I remember is that I let Mr. Newman run the
show, and that’s all I can tell you, honestly.
You trusted his judgment?
Yes, Ma’am.
-216-
Pea ReRENT
MS. SWEENEY: I HAVE NOTHING
ELSE, YOUR HONOR.
| THE COURT: ANY MORE DIRECT?
YOU DON’T HAVE ANY MORE
DIRECT, DO YOU?
MR. ADAMS: NO.
THE COURT: ALL RIGHT. THIS IS
HEARING IS CLOSED. DO YOU
HAVE ANY ARGUMENT? YOU’RE
NOT GOING TO BE PRESENTING
ANY?
-217-
CERTIFICATE OF SERVICE
F. Kirk Adams, Esquire, Counsel for Petitioner,
hereby certifies that he served a copy of the within
Appendix On Petition For Writ of Certiorari to the
United States Court of Appeals for the Third Circuit, No.
00-1099 on the attorney for the Commonwealth of
Pennsylvania, Deputy District Attorney, Donna G.
Zucker, Esquire, Chief of the Federal Litigation
Department of the Philadelphia District Attorney’s Office
at 1421 Arch Street, Philadelphia, PA 19102, by U.S.
Mail, postage prepaid, on the date set forth below.
Date: 7-34-o/ AKL hte cla——"
F. Kirk Adams, Esquire
-218-
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.